3.3 The Federal Spending Power . . . 39
3.4 Working Together . . . . . . . . 41
Proposals . . . . . . . . . . . . . . . 43
Conclusion: How Do We Get There? . . . . . 49
Appendix I: List of proposals . . . . . . . 51
Preface
Canadians are proud of their land and their
shared values and the advantages and opportunities
provided by Canadian citizenship. But Canadians are
now searching for new arrangements that will serve
as a blueprint for the future. We are all searching
for change that will enable the country to preserve
what is cherished, while growing to meet the demands
of a new and competitive world.
Over the past year, the Government of Canada has
been developing proposals that would revise the
rules that shape the country's political life. Many
of those rules are set out in the Constitution, and
changing them will require formal amendment. But not
all reforms will require amendments to the
Constitution. The proposals set out here incorporate
both constitutional and non-constitutional change.
These proposals are intended to give focus to a
national dialogue. They represent an invitation to
all Canadians across this country to participate in
a genuine political renewal. The objective of this
process is a better and stronger Canada which
reflects our true values and allows us to achieve
our common goals and objectives while respecting our
diversity. These proposals attempt to identify some
basic realities and a concept to guide the debate.
But the Government is open to any suggestion that
will improve the proposals.
A Special Joint Committee of the House of
Commons and the Senate has been established to
provide Canadians with a way to take part in the
renewal process. The process will benefit from broad
participation. Provincial task forces have been
created and many individual initiatives are under
way. The Government's proposals have already
benefited from such participation, including the
suggestions of thousands of Canadians funnelled
through the Citizens' Forum on Canada's Future.
Above all, the Government of Canada wants all
Canadians to review these proposals and channel
their own views and reactions into the process. Over
the next five months, Canadians have an unparalleled
chance to have their say.
Once Canadians have had their opportunity to
respond to these proposals, the Government intends
to move forward with determination and resolve to
achieve the changes that we must make to shape a
stronger and better country and a more prosperous
future for all Canadians.
Introduction
Shaping Canada's Future Together
Canada today is a society of freedom, tolerance
and compassion.
Our history tells of our achievements. Canada
has been home to aboriginal peoples, the first
organized societies in North America, for thousands
of years. Europeans arrived nearly five centuries
ago, followed by peoples from all over the world.
They began building settlements that eventually
spanned the breadth of a continent. Canada has
developed a renowned system of social and health
services. Our reputation as a leader in peacekeeping
is respected around the world. Our economy is among
the most prosperous in the world. We have grown to
become a member of the group of the world's seven
largest industrialized economies. The land itself,
vast and beautiful, is a rich inheritance held in
trust for future generations.
These are accomplishments that do justice to the
high hopes of the Fathers of Confederation. George-
tienne Cartier expressed his vision in 1867 in the
following words:
I hope that this grand project of
Confederation, achieved under the best of
circumstances, will produce results that are
as satisfying as they are lasting. We sealed
our federal pact without bloodshed and
without exploitation of the weak by the
strong. All it took was fairness, justice and
some compromises on both sides.
I hope that if it must be amended, it will
not be to narrow the principles of fairness
on which it is founded, but rather to enlarge
them even more....
Canada's architects in 1867 understood that
federalism was the only option for our nation-
building. With its two levels of government,
federalism combines self-rule with shared rule. It
allows diverse communities to be united in one
country without suppressing their distinctiveness.
Federalism not only gives room to regions or
provinces to make decisions in their own areas, but
also allows them to achieve objectives in other
areas. And our federal system has proven itself both
flexible and durable, adapting to our changing needs
since Confederation.
The Canada of the late 20th century bears little
resemblance to the Dominion created in 1867. Not in
the territory it covers, not in its people, not in
its economy, not in its culture. Its political
institutions and federal system have been preserved
in some respects, and transformed in others.
Confederation was brought about in large part
through a political bargain between the leaders of
two societies: a mainly English-and-Protestant one,
and a mainly French-and-Catholic one. The federal
structure of 1867 recognized Quebec's right to be
different within the economic and political union.
The new federal structure, therefore, incorporated
specific provisions to recognize the different
language, culture and civil law tradition of Quebec.
The initial bargain also took into account the
special financial and transportation needs of Nova
Scotia and New Brunswick, and it opened the door to
westward expansion and settlement.
The original four-province Canada has changed
significantly over time to create Canada as we know
it today. Some claim that the original bargain has
not been fully respected. Others, by contrast, think
the bargain has not been sufficiently updated to
meet changing needs. In fact, the terms of that
original political bargain have been significantly
altered over the past century and a quarter through
changes in governmental practice, judicial
interpretation, and formal constitutional amendment.
Among amendments, the most far-reaching has
unquestionably been the Constitution Act, 1982,
which included the Canadian Charter of Rights and
Freedoms.
But there are compelling reasons for further
constitutional renewal.
Aboriginal Canadians are frustrated by a
Constitution that does not fully recognize their
special place in the Canadian society. After a major
step forward with the entrenchment in the
Constitution of aboriginal and treaty rights in
1982, and successful amendment in 1983, the
frustration of aboriginal Canadians has grown from
the failure of three successive First Ministers'
Conferences (1984, 1985, 1987) to entrench the
constitutional recognition of their right to self-
government.
Canada must also address Quebec's desire for
recognition of its distinct nature and for more
control over areas that are inherent to that
distinctiveness. Quebecers were promised that if
they voted "no" in the 1980 referendum on
sovereignty, federalism would be renewed. Yet, the
constitutional changes made in 1982 were brought
about without the consent of the Quebec government
and in spite of the overwhelming disapproval of the
members of the National Assembly. Efforts to bring
Quebec back into Canada's constitutional family
under the Meech Lake Accord failed in 1990 when the
amendment as approved by all First Ministers did not
receive the subsequent ratification of all
legislatures, as required by the constitutional
amending formula. Both events left many Quebecers
feeling rejected by the rest of Canada.
Many Canadians, particularly in the West, but
also in the Atlantic provinces, Ontario and the
North, have become increasingly critical of the
manner in which our federal system has operated.
They want political institutions that are more
responsive to their wishes. They want a streamlined
system of government which minimizes unnecessary
overlap, and institutions which encourage integrity
rather than confrontation. Canadians from every
region want federal institutions that will hear and
act on the aspirations of all parts of the country.
Pressures from within have been accompanied by
increasing international pressures. Global forces
are affecting the sovereignty of states and
increasing their interdependence. Even the largest
states are proving too small to cope alone with many
of their economic, security and environmental
problems. But at the same time, there are world-wide
pressures to decentralize political decision-making.
Canada, like other countries, is tugged in these two
different directions at once.
Canada must ensure that it is equipped to deal
with the economic challenges of the next century. If
we are to maintain our prosperity, ensure a high
standard of living for our children, and continue
our efforts to reduce the disparities that exist
between the regions of Canada one of the most
important and enduring principles of Confederation
we must be prepared to work together more
harmoniously and effectively. We must have an
economic union that is both modern and truly
functional.
The challenge that faces us all, as Canadians,
is to build a better federation for the 21st
century. It will need to be a federation that
reinforces and expresses the many-sided character of
Canada itself: a homeland of many peoples including
the First Peoples, a land of two linguistic
majorities, a land of diverse regions, a free and
democratic society, a land which is respectful of
differences, a strong economic union, a sharing
community providing equality of opportunity and
economic security for all its people, an important
player on the international stage.
Federalism is the only political system that
will respect these characteristics, all of which are
embedded in our history and our consciousness.
Federalism has important advantages over alternative
forms of political union or association. In a
country as vast and varied as Canada, it avoids the
overcentralization that occurs in unitary systems.
It also avoids the disadvantages of a looser
association of states, which would be too
ineffective to achieve effective common action or
the economic redistribution that can address
regional disparities.
The challenge today is very much like that in
1867 to create a federation which can unite
Canadians for the achievement of common goals while
ensuring room for diversity. The basic objective,
therefore, for a revitalized Canadian federation is
the effective reconciliation of unity and diversity
through a harmonious combination of distinct parts.
Together, Canadians have created a country that
is one of the great success stories of the modern
world. Canada has its shortcomings, but also great
strengths. We can adapt and even, in some
fundamental ways, redesign our federal system. We
owe it to ourselves and to our children to surmount
our present difficulties by reconciling our unity
and diversity in a creative and imaginative way.
This is Canada's round. We must complete the
process begun with the 1982 amendments to the
Constitution, and prepare for the 21st century,
building a framework that responds to the
aspirations of all Canadians. The foundation is
there. Together, we can build a better Canada.
Part I
Shared Citizenship and Diversity
Canada has been the inspiration of my
life. I have had before me...a policy of
true Canadianism, of moderation, of
conciliation. I have followed it
consistently since 1896, and I now appeal
with confidence to the whole Canadian
people to uphold me in this policy of
sound Canadianism which makes for the
greatness of our country....
Sir Wilfrid Laurier, 1911
Canadian citizenship is an emotional tie, a
sense of shared values and commitments to our
country. Our shared Canadian citizenship provides a
focus for unity that encompasses its parts, and
brings our people together.
Being Canadian does not require that we all be
alike. Around a core set of shared values, Canadian
citizenship accommodates a respect of diversity that
enriches us all. Many Canadians have deep loyalties
to their own communities to a language, to a
region, to an aboriginal group, to a distinct
culture, to Quebec as a distinct society, or to
ethnic roots. We may have other ways of defining
ourselves by gender, occupation, religion or
political party. But woven through all these is the
sense of good fortune which comes from knowing we
belong to a great country, from being Canadians.
Canada is a country that believes in freedom,
dignity and respect, equality and fair treatment,
and an opportunity to participate. It is a country
that cares for the disadvantaged, a country that
prefers peaceful solutions to disputes. Although we
sometimes lose sight of this, we do share essential
values as Canadians from coast to coast to coast.
These shared values have been described in many ways
and in many places over the years. The Canadian Bill
of Rights, now over 30 years old, was written to
capture many of these shared values those of
dignity, freedom and respect for the individual.
1.1 Shared Values: The Canadian Identity
Over the past year, Canadians have taken the
opportunity to speak their minds on the Canadian
identity, using platforms which have included the
Citizens' Forum on Canada's Future, provincial
commissions, and several privately sponsored
surveys. Most have spoken in favour of change,
expressing their frustration and impatience with the
status quo.
But many who spoke to the Citizens' Forum
articulated a strong sense of a distinct Canadian
identity which sets us apart from any other country.
They expressed a sense of deeply felt core values
which they believe that all Canadians share: a
belief in the need for equality and fairness as
guiding principles for our society, a belief in
consultation and peaceful dialogue, the importance
of accommodation and tolerance, a respect for
diversity, the need for compassion and generosity,
the value of Canada's natural beauty, and the
importance of a national conscience that spurs us to
make our contribution to global peace and
development.
Canadians have told us that they care deeply
about their citizenship. For many, not only the
explorers and pioneers, but also recent newcomers to
this country, Canada has meant personal freedom,
freedom from restrictions and hunger. These
newcomers were escaping old oppressions and
searching for new possibilities. They knew that in
Canada there is room for everyone to breathe.
It is true that this country and its creation
have not taken place without pain and suffering. The
aboriginal peoples, in particular, have paid a high
price for other peoples' search for freedom. Canada
has not always been inclusive, and many have been
left out of the benefits of citizenship. Yet,
despite these gaps which we are only now
acknowledging and trying to remedy, Canada remains
deeply symbolic of freedom in its broadest sense.
Many around the world still long to come to our
shores, to share in what we have built. People in
other nations continue to risk their lives and
sacrifice their security for freedoms that previous
generations have already guaranteed for us in this
country.
What else does our citizenship mean to us? Not
only freedom from oppression, but also the right to
participate. Our democratic rights are immensely
important to us so important that we must
continually expand and improve them. Even in Canada,
democratic rights for women, for aboriginal peoples
and for certain ethnic groups have come only after
long struggle. We must all remain committed to
improving our democracy and to ensuring that all
members of society can fully participate in its
institutions.
From its beginnings in democracy, freedom and
the rule of law Canada has developed its own
unique way of governing, its own special
relationship between citizen and state. Whether out
of genius or necessity, the architects of Canada
provided a framework which has allowed us to build a
country on the basis of what appear increasingly to
be universal values freedom, equality, compassion
and community in a distinctly Canadian way.
1.2 The Rights of Citizenship and the Charter
In 1982, the protection of Canadians'
fundamental rights took a significant step forward
with the entrenchment of the Canadian Charter of
Rights and Freedoms in the Constitution. Our
fundamental freedoms were no longer to be found only
in conventions and laws that can be changed by
Parliament or provincial legislatures. They are now
found in the Constitution itself. The Charter
ensures that laws restrict freedom as little as is
reasonably possible. Freedom and fulfilment of the
individual are limited only by the need for all
individuals to have the same freedom and all that
goes with it.
The Charter contains protections for equality
that have struck a special chord with Canadians.
The purpose of equality rights, our Supreme
Court has said, is to remedy or prevent
discrimination against groups suffering social,
political or legal disadvantage. Many groups in our
society have faced or continue to face formidable
barriers to being included in our society as
themselves, for what they are. The physically and
mentally disabled, aboriginal peoples, visible
minorities, official language minority groups and
others face daily challenges not always understood
by the rest of society. Equality aims to eliminate
the barriers of discrimination. The goal of equality
is not to achieve identical treatment; rather, by
ridding laws of discriminatory distinctions,
equality rights aim at equality of opportunity for
disadvantaged individuals or groups. In fact, the
Supreme Court has said that the accommodation of
differences is the essence of true equality.
In the Canadian experience, it has not been
enough to protect only universal individual rights.
Here, the Constitution and ordinary laws also
protect other rights accorded to individuals as
members of certain communities. This accommodation
of both types of rights makes our Constitution
unique and reflects the Canadian value of equality
that accommodates difference. The fact that
community rights exist alongside individual rights
in our Constitution goes to the very heart of what
Canada is all about.
The Government of Canada reaffirms unequivocally
its support for rights guaranteed in the Charter.
However, the Charter does not guarantee a right to
property. It is, therefore, the view of the
Government of Canada that the Canadian Charter of
Rights and Freedoms should be amended to guarantee
property rights.
The Charter recognizes that rights are subject
to reasonable limits consistent with the values of a
free and democratic society. One person's right may
occasionally have to be limited when it conflicts
with the rights and interests of others or of the
community as a whole. The right of free expression
does not justify libel or hate literature. We ask
the courts to play a key role in striking these
kinds of balances.
Another source of limitation is found in the use
of an override provision which was included in the
Constitution in 1982, when the Canadian Charter of
Rights and Freedoms was entrenched. This override
clause is commonly referred to as the
"notwithstanding clause" (section 33). This
provision allows provincial and federal legislatures
to override certain Charter provisions by an act of
the legislature, passed by means of a simple
majority. The override is effective for five years,
at which time it either lapses or is renewed by the
legislature in question.
Strong arguments have been made that this
override dilutes the guarantee of rights under the
Charter, since it allows legislatures to exempt
themselves from the scope of many (but not all)
rights when they deem it necessary. The contrary
argument, advanced by those who insisted upon its
inclusion when they supported the Charter in 1982,
is that under our parliamentary system it is
entirely appropriate that elected representatives,
rather than judges, should have the final say on
public policy and social needs. The override
provision was the result of a political compromise.
If it did not exist, judges appointed to the Supreme
Court of Canada would be able to determine the scope
of all rights, and any limits to public policy.
As a practical matter, the provision for an
override will remain in the Constitution, but the
Government of Canada believes that resort to its use
should be subject to stricter conditions. It,
therefore, proposes that the votes necessary for
Parliament or a provincial legislature to invoke the
override clause of the Charter be changed from a
simple majority to 60 percent of the members of
Parliament or the provincial legislature.
1.3 Recognizing Quebec's Distinctiveness
I have always contended that if we could
agree to have one government and one
parliament, legislating for the whole of
these peoples, it would be the best...and the
strongest system of government we could
adopt. But...we found that such a system was
impracticable...it would not meet the assent
of the people of Lower Canada,...with a
different language, nationality and religion
from the majority...it was found that any
proposition which involved the absorption of
the individuality of Lower Canada...would not
be received with favour by her people.
Therefore, we were forced to the conclusion
that we must devise a system of union in
which the separate provincial organizations
would be in some degree preserved.
Sir John A. Macdonald, 1865
To recognize the distinct character of Quebec
society is to acknowledge sociological and political
reality. In fact, the British Parliament broke with
its policies in all other colonies and granted
Quebec, through the Quebec Act, 1774, the right to
preserve its language, religion, civil rights and
seigneurial system in short, its French way of
life thereby creating a distinct society within
Canada. We have had that distinct society for more
than 200 years.
This recognition of the distinctiveness of
Quebec society, the fruit of Great Britain's
political realism, did not go smoothly. In 1867,
after the legislative union of Upper and Lower
Canada proved impossible, and the ill-conceived
plans to assimilate French Canadians under the Union
Act, 1840 failed, the country opted for a creative
compromise. It adopted a federal system which could
reconcile the provinces' (particularly Quebec's)
right to be different while joining together to
build an economic union and a dynamic
transcontinental country which was distinct from the
United States.
In order to achieve this goal, it was decided to
restore important elements from the Quebec Act at
the time of Confederation and provide the French-
speaking people of Quebec with the authority to
preserve and promote their language and culture
within the new federation.
Since 1867, Canada has changed. Regional
identities have multiplied and been strengthened,
and immigration from around the world has reinforced
Canada's multicultural character, both within and
outside Quebec.
While proclaiming its openness to the forces of
globalization and reaffirming its willingness to
guarantee in the Constitution the rights of its
Anglophone community and ethnic minorities, Quebec
is requesting that the Constitution be modernized to
reflect today's reality while respecting the
original bargain of Confederation.
Quebec is asking that the Constitution reflect
Quebec's distinctiveness as the only society with a
majority French language and culture in Canada and
in North America.
The Charter of Rights and Freedoms already
contains several clauses, notably section 25 on
aboriginal rights and section 27 on our
multicultural heritage, which recognize the
importance of specific components of Canadian
society. These clauses are intended as a guide to
the interpretation of the scope and limitations of
the provisions of the Charter. It is anomalous that,
as it stands, the Charter includes no similar clause
with respect to Quebec despite the distinctiveness
of its society.
The Government of Canada proposes that the
Charter of Rights and Freedoms should be interpreted
in a manner consistent with the preservation and
promotion of a vibrant French-speaking society in
Quebec that protects the quality and influence of
French as the expression of its culture and as the
primary language of work, instruction,
communication, commerce and business in Quebec. A
definition is proposed in order to capture the most
evident elements of Quebec's distinctiveness.
In addition, in recognition that linguistic
duality is a fundamental characteristic of Canada,
the Government of Canada believes that the Charter
should also be interpreted in a manner consistent
with the preservation of the existence of French-
speaking Canadians and English-speaking Canadians,
both present in all parts of Canada, but the former
concentrated in Quebec and the latter concentrated
outside Quebec.
1.4 Canada's First Peoples
Long before the arrival of Europeans, the
territory which now makes up Canada was home to
aboriginal peoples. Aboriginal languages, traditions
and cultures grew and developed. The prominent roles
aboriginal peoples have played in Canada's history
represent a vital part of Canada's identity.
Increasingly, the sharing of different perspectives
which stem from the contact between aboriginal and
non-aboriginal people is seen as a source of
richness to be valued, celebrated and preserved in a
spirit of mutual respect.
Now more than ever, there is a recognition and
an urgency to secure the legitimate place of
aboriginal peoples within the Canadian partnership.
Although efforts to resolve the complex issues have
been marked by many disappointments, progress toward
a greater measure of mutual understanding has
clearly been made. There is now an opportunity to
address these issues and to lay a solid basis for
the kind of future to which the first peoples of
Canada aspire.
Like all Canadians, aboriginal peoples look to
the Constitution for a reflection of their vision of
Canada and for a definition of their place within
the Canadian federation. The current constitutional
process should create conditions that will help
aboriginal communities realize their full potential
within Canada.
Aboriginal peoples must take part in the process
Section 35.1 of the Constitution Act, 1982
commits governments to the principle that aboriginal
peoples will participate in discussions relating to
amendments of the provisions of the Constitution of
Canada which relate directly to them. The current
constitutional debate will deal with matters that
directly affect the aboriginal peoples of Canada. As
the first peoples to inhabit Canada, aboriginal
peoples must have a role in the constitutional
process that will determine the future of this
country.
The right of aboriginal peoples to self-government
should be constitutionally recognized
Aboriginal peoples were self-governing at the
time of first contact with European societies. Their
powers of self-government, however, have been
seriously eroded by the encroachment of non-
aboriginal society and more than a century of
paternalism under the Indian Act. Self-government
within the Canadian federation would eliminate the
need for the instruments and methods of federal
intervention found in the Indian Act. It would be an
important factor in facilitating the maintenance of
the distinctiveness and collective rights of the
aboriginal peoples.
The Inuit who live in the more remote northern
regions of Canada have devoted much of their effort
in recent time to complex and comprehensive land
claims negotiations. They have pressed for increased
political autonomy through the government system and
the entrenchment of their right to self-government.
They have also pressed for the creation of a
Territory of Nunavut as a means of reaching that
objective.
The Metis, for their part, have played a
prominent role in the development of Canada's West.
The Metis have often been characterized as Canada's
forgotten people; the Government of Canada is
committed to addressing the appropriate roles and
responsibilities of governments as they relate to
the Metis.
The provincial governments have generally
supported the principle of self-government
arrangements for aboriginal Canadians. However, the
nature and extent of appropriate constitutional
recognition has been the subject of considerable
debate.
The Government of Canada proposes an amendment
to the Constitution to entrench a general
justiciable right to aboriginal self-government in
order to recognize aboriginal peoples' autonomy over
their own affairs within the Canadian federation. As
the right would, in the end result, be enforceable
by the courts, the Government of Canada proposes
that two important steps be taken to provide a
framework for the exercise of this right.
First, it will be important to express the
nature of the right in terms that guide the courts
toward an interpretation of self-government that is
consistent with the understanding of both aboriginal
and non-aboriginal peoples. For example, such a
right would provide for recognition of the differing
circumstances and needs of the different aboriginal
peoples in Canada and would be exercised within the
Canadian constitutional framework, subject to the
Canadian Charter of Rights and Freedoms. Many
federal and provincial laws of general application
would also continue to apply.
Second, even though the general nature of the
right would be described in the Constitution, it
will be essential to ensure that the relationship
between aboriginal and non-aboriginal governments is
understood by all. For this reason, and to ensure a
smooth transition, the Government of Canada
proposes:
that there be a commitment by governments to
negotiate self-government agreements with the
aboriginal peoples;
that there be regularly scheduled First
Ministers' conferences on this subject;
that the general enforceability of the right
be delayed for a period of up to 10 years
from the time that the amendment is adopted;
that, during this initial stage, agreements
reached in negotiations will proceed and that
agreements reached will receive
constitutional protection as they are
developed.
After this period of transition, the right to
self-government could be enforced on its own. In
practice, however, it is expected that the details
of the extent and nature of aboriginal jurisdiction
will be determined through a process of negotiations
with aboriginal communities.
Within the context of the Canadian federation,
aboriginal governments would potentially exercise a
combination of jurisdictions presently exercised by
the federal, provincial and municipal governments,
although many federal and provincial laws of general
application would continue to apply. Depending on
the requirements and circumstances of the aboriginal
group in question, jurisdiction of aboriginal
governments could potentially encompass a wide range
of matters including land and resource use, language
and culture, education, policing and administration
of justice, health, social development, economic
development and community infrastructure.
A constitutional process on aboriginal matters
Since it will not be possible to deal with all
the issues on the aboriginal agenda within the time
allowed for this process, the Government of Canada
believes it would be appropriate to entrench in the
Constitution the requirement for a constitutional
process to deal with outstanding aboriginal issues
within an appropriate time. Ministers and aboriginal
leaders should also use this forum to monitor the
progress made in the negotiation of self-government
agreements.
Representation of aboriginal peoples in the Senate
Some countries have taken special measures to
guarantee that their aboriginal peoples are
represented in their legislative houses. Aboriginal
peoples in Canada have been chronically under-
represented in our political institutions at the
federal level. This situation is unacceptable, and
must be redressed. The Government of Canada,
therefore, proposes that aboriginal representation
should be guaranteed in a reformed Senate.
1.5 A Constitutional Affirmation of the Canadian
Identity
A constitution has two key purposes: one legal,
one symbolic. It sets the rules by which a people
govern themselves. But it should also convey a sense
of why the rules are drafted as they are, what
values shape them, what purposes and characteristics
identify the people to whom they apply. All
Canadians should be able to relate to the
description of the qualities that define the country
to which they are bound by birth or choice.
As our Constitution stands, that second symbolic
component is particularly weak. The preamble to the
Constitution Act, 1867 contains an acknowledgement
that four provinces desired to come together in a
federal union under the name of Canada, with a
parliamentary system of government similar in
principle to that of the United Kingdom. The
Canadian Charter of Rights and Freedoms, which
introduces the Constitution Act of 1982, contains a
single preambular clause stating that Canada is
"founded upon principles that recognize the
supremacy of God and the rule of law." Neither one
of these preambles contains a full description of
who we are as a people and what we aspire to be.
The Government of Canada proposes that a "Canada
clause" be added in the body of the Constitution to
affirm the identity and aspirations of the people of
Canada. The Government of Canada believes that it
would be appropriate for the following
characteristics and values to be reflected in such a
statement that would be entrenched in section 2 of
the Constitution Act, 1867:
a federation whose identity encompasses the
characteristics of each province, territory
and community;
the equality of women and men;
a commitment to fairness, openness and full
participation in Canada's citizenship by all
people without regard to race, colour, creed,
physical or mental disability, or cultural
background;
recognition that the aboriginal peoples were
historically self-governing, and recognition
of their rights within Canada;
recognition of the responsibility of
governments to preserve Canada's two
linguistic majorities and minorities;
the special responsibility borne by Quebec to
preserve and promote its distinct society;
the contribution to the building of a strong
Canada of peoples from many cultures and
lands;
the importance of tolerance for individuals,
groups and communities;
a commitment to the objective of sustainable
development in recognition of the importance
of the land, the air and the water and our
responsibility to preserve and protect the
environment for future generations;
respect for the rights of its citizens and
constituent communities as set forth in the
Canadian Charter of Rights and Freedoms;
the free flow of people, goods, services and
capital throughout the Canadian economic
union and the principle of equality of
opportunity throughout Canada;
a commitment to the well-being of all
Canadians;
a commitment to a democratic parliamentary
system of government;
the balance that is especially Canadian
between personal and collective freedom on
the one hand and, on the other hand, the
personal and collective responsibility that
we all share with each other.
Proposals
1. Reaffirming the rights and freedoms of
citizens. The Government of Canada reaffirms the
basic rights set out in the Charter as a fundamental
feature of the Canadian Constitution. The Government
of Canada proposes that the Canadian Charter of
Rights and Freedoms be amended to guarantee property
rights. The Government of Canada further proposes
that the votes necessary for Parliament or a
provincial legislature to invoke the override
(section 33) be changed from a simple majority to 60
percent of the members of Parliament or the
provincial legislature.
2. Recognition of Quebec's distinctiveness and
Canada's linguistic duality. The Government of
Canada proposes that a section be included in the
Charter stating that the Charter of Rights and
Freedoms shall be interpreted in a manner consistent
with the recognition of Quebec as a distinct society
within Canada. The section would read:
25.1 ( 1 )
This Charter shall be interpreted in a manner
consistent with
(a) the preservation and promotion of Quebec
as a distinct society within Canada; and
(b) the preservation of the existence of
French-speaking Canadians, primarily located
in Quebec but also present throughout Canada,
and English-speaking Canadians, primarily
located outside Quebec but also present in
Quebec.
( 2 )
For the purposes of subsection (1), "distinct
society", in relation to Quebec, includes
(a) a French-speaking majority;
(b) a unique culture; and
(c) a civil law tradition.
(See the Annex at the end of Part I for excerpts
from the Charter: present sections 1, 25, 27, 28 and
31 and proposed section 25.1.)
3. Aboriginal participation in current
constitutional deliberations. The Government of
Canada is committed to ensuring that aboriginal
peoples participate in the current constitutional
deliberations.
4. Aboriginal self-government. The Government
of Canada proposes an amendment to the Constitution
to entrench a general justiciable right to
aboriginal self-government within the Canadian
federation and subject to the Canadian Charter of
Rights and Freedoms, with the nature of the right to
self-government described so as to facilitate
interpretation of that right by the courts. In order
to allow an opportunity for the Government of
Canada, the governments of the provinces and the
territories, and aboriginal peoples to come to a
common understanding of the content of this right,
its enforceability would be delayed for a period of
up to 10 years. The Special Joint Committee should
examine the broad parameters of the right to be
entrenched in the Constitution and the jurisdictions
that aboriginal governments would exercise.
5. Aboriginal constitutional process. The
Government of Canada proposes the entrenchment of a
constitutional process to address aboriginal matters
that are not dealt with in the current
constitutional deliberations and to monitor progress
made in the negotiations of self-government
agreements.
6. Representation of aboriginal peoples in the
Senate. The Government of Canada proposes that
aboriginal representation should be guaranteed in a
reformed Senate.
7. A Canada clause in the Constitution. The
Government of Canada proposes that a "Canada clause"
that acknowledges who we are as a people, and who we
aspire to be, be entrenched in section 2 of the
Constitution Act, 1867. The Government of Canada
believes that it would be appropriate for the
following characteristics and values to be reflected
in such a statement:
a federation whose identity encompasses the
characteristics of each province, territory
and community;
the equality of women and men;
a commitment to fairness, openness and full
participation in Canada's citizenship by all
people without regard to race, colour, creed,
physical or mental disability, or cultural
background;
recognition that the aboriginal peoples were
historically self-governing, and recognition
of their rights within Canada;
recognition of the responsibility of
governments to preserve Canada's two
linguistic majorities and minorities;
the special responsibility borne by Quebec to
preserve and promote its distinct society;
the contribution to the building of a strong
Canada of peoples from many cultures and
lands;
the importance of tolerance for individuals,
groups and communities;
a commitment to the objective of sustainable
development in recognition of the importance
of the land, the air and the water and our
responsibility to preserve and protect the
environment for future generations;
respect for the rights of its citizens and
constituent communities as set forth in the
Canadian Charter of Rights and Freedoms;
the free flow of people, goods, services and
capital throughout the Canadian economic
union and the principle of equality of
opportunity throughout Canada;
a commitment to the well-being of all
Canadians;
a commitment to a democratic parliamentary
system of government;
the balance that is especially Canadian
between personal and collective freedom on
the one hand and, on the other hand, the
personal and collective responsibility that
we all share with each other.
Annex
Recognizing Quebec's Distinctiveness in the
Canadian Charter of Rights and Freedoms
The following is the present sections 1, 25, 27,
28 and 31 and the proposed section 25.1:
1. The Canadian Charter of Rights and
Freedoms guarantees the rights and
freedoms set out in it subject only to
such reasonable limits prescribed by law
as can be demonstrably justified in a free
and democratic society.
25. The guarantee in this Charter of certain
rights and freedoms shall not be construed
so as to abrogate or derogate from any
aboriginal, treaty or other rights or
freedoms that pertain to the aboriginal
peoples of Canada including
(a) any rights or freedoms that have been
recognized by the Royal Proclamation of
October 7, 1763; and
(b) any rights or freedoms that now exist
by way of land claims agreements or may
be so acquired. (92)
25.1 ( 1 )
This Charter shall be interpreted in a manner
consistent with
(a) the preservation and promotion of
Quebec as a distinct society within
Canada; and
(b) the preservation of the existence of
French-speaking Canadians, primarily
located in Quebec but also present
throughout Canada, and English-speaking
Canadians, primarily located outside
Quebec but also present in Quebec.
(2) For the purposes of subsection (1),
"distinct society", in relation to
Quebec, includes
(a) a French-speaking majority;
(b) a unique culture; and
(c) a civil law tradition.
27. This Charter shall be interpreted in a
manner consistent with the preservation
and enhancement of the multicultural
heritage of Canadians.
28. Notwithstanding anything in this Charter,
the rights and freedoms referred to in it
are guaranteed equally to male and female
persons.
31. Nothing in this Charter extends the
legislative powers of any body or
authority.
Part II
Responsive Institutions for
a Modern Canada
Canada's political institutions must be
revitalized. One of the important conclusions of the
Citizens' Forum on Canada's Future was that
Canadians are increasingly concerned about the
effectiveness, fairness and respon-siveness of those
institutions.
Our objective must be to build upon our
parliamentary traditions to produce improved
political institutions. These institutions must be
democratic; they must be effective; they must be
seen by Canadians across the country to represent
them fairly and responsively; and they must reflect
the diversity of peoples and opinions within the
country.
2.1 House of Commons Reform
Many Canadians have become concerned that our
parliamentary system is too partisan: that it is
weighed too heavily toward conflict, rather than
toward cooperation. The abrasive character of
adversarial debate in the House of Commons,
particularly in Question Period, has undermined
parliamentary decorum and the public's confidence in
parliamentary institutions and the ability of
elected members to focus on their legitimate
representational requirements. A loss of confidence
in the way the country's political business is
conducted has even led to demands for the transfer
of legislative power out of the hands of members of
Parliament, through the use of referendums and
plebiscites.
The Government is confident that Canadians are
best served by the democratic election of their
representatives on a regular basis, to act on their
behalf in a way that reflects both the interests of
the voters and the integrity of the people they
elect. This is a stable, reasonable and responsible
system. The first priority must be to reform rather
than by-pass the House of Commons.
While the reform of the House of Commons is
important, it is not primarily a matter for federal-
provincial deliberations on amendments to the
Constitution. Therefore, the Government of Canada,
in cooperation with all parties in the House of
Commons, will explore ways and means to strengthen
the representational and legislative capacities of
individual members of Parliament. Canadians expect
their MPs to have a reasonable measure of freedom
from party discipline to allow them to represent
constituency and regional concerns, and to have a
meaningful impact on legislation. The Government
will, therefore, develop proposals to enable more
free votes.
Modification of the conventions for non-
confidence votes to allow more free votes would be a
very important reform. (The loss of a non-confidence
vote leads to defeat of a government and its
resignation.) Such conventions can be relaxed and
party discipline reduced without serious
consequences for responsible or effective
government. In addition to taxation and supply
matters, confidence votes might be restricted to a
limited number of bills central to the government's
program which would be explicitly identified as
confidence measures. In this way, there would be
more legislation subjected to "free votes" (in which
individual MPs can better represent their
constituents by choosing how to vote without having
to worry that the government may fall).
Other proposals to be considered include:
providing more House time and greater
priority for private members' bills;
referring bills to parliamentary committees
at an earlier stage after first reading and
before approval in principle at the second
reading to give those committees more scope
in amending bills; and
requiring that vacancies in the House of
Commons be filled within a specified period,
thereby respecting the needs of constituents
for representation.
The Government will also explore how the
openness and visibility of parliamentary procedures
might be improved. At present, much of the
independent work by MPs on behalf of their
constituents takes place in caucus and in Cabinet.
Procedures which allow considerable loosening of
party discipline to bring the actions of MPs into
the open would help to strengthen the confidence of
Canadians in the responsiveness of their
representatives.
2.2 Senate Reform
In virtually every federation, the federal
legislature is composed of two houses. One is
usually a directly elected house, such as the
Canadian House of Commons, in which representation
is based on population. The second house is designed
to give particular weight to regional and minority
views in federal policy-making. In many federations,
the second house is also elected, in some manner,
giving it a claim to democratic legitimacy.
Canada's non-elected Senate is unique among
federations. Not surprisingly, there is a long
history in Canada of pressure for Senate reform.
This pressure has become particularly acute in
recent years as both the Western and the Atlantic
provinces have voiced irritation that the House of
Commons is dominated by the electoral weight of the
more populous provinces.
The impetus for Senate reform stems first and
foremost from the conviction held by many Canadians
that federal decision-making is not sufficiently
responsive to regional diversity. More recently,
support for Senate reform has gathered added
momentum from public dissatisfaction with the
Senate's non-elected character. It has become
impossible to reconcile an unelected Senate blocking
the legislative will of the elected House of Commons
with the demand by Canadians for more democratic and
responsive government.
The status quo of federal appointment cannot be
sustained. Neither is abolition of the Senate a
practical option at this time. Every other
successful federation has a representative second
chamber in the federal legislature. Abolition would
not address chronic concerns about the lack of
effective regional representation.
An Elected Senate
The principle that Senators be elected directly
by the people reflects the broad consensus among
Senate reform proposals that have emerged since the
adoption of the Constitution Act in 1982. Therefore,
the Government of Canada proposes a directly elected
Senate, designed both to improve regional
representation and to increase responsiveness to
individuals by strengthening the power of the
Canadian electorate through changes to reform the
Senate.
An elected Senate could assume many and quite
varied forms. Within this framework, three closely
related aspects must be considered: (a) the method
of election of Senators, (b) the distribution of
Senate seats, and (c) the powers of the Senate.
The Government of Canada proposes that the
timing of Senate elections should coincide with
elections to the House of Commons. On this basis,
the dissolution of the House of Commons would imply
the dissolution of the Senate. This would emphasize
the federal character of the Senate, and would also
recognize the fact that the House of Commons and the
Senate share a common legislative agenda.
a) Method of Election
Other federal systems with elected second
chambers provide a wide variety of means of
selecting their senators, ranging from the same
system we use to elect MPs to the House of Commons,
to more complex systems of proportional
representation. The Special Joint Committee is asked
to consider various options for electing senators on
the basis of the following principles:
The method of election should give expression
to the social diversity of the Canadian
population, keeping in mind the history of
the inadequate political representation of
women, aboriginal peoples and ethnic groups.
As suggested by the Royal Commission on the
Economic Union and Development Prospects for
Canada (the Macdonald Commission), the size
of Senate constituencies should be large
enough to allow for proportional
representation and, in the larger provinces,
numerous enough to represent different
regions within the province.
b) Distribution of Senate Seats
Current provincial representation in the Senate
displays an outdated historical logic and is no
longer acceptable: Ontario and Quebec each have 24
seats, Nova Scotia and New Brunswick each have 10,
the four Western provinces and Newfoundland each
have 6, Prince Edward Island has 4, and the Yukon
and Northwest Territories have 1 each, for a total
of 104 seats. The distribution is anomalous in many
ways. New Brunswick and Nova Scotia, for example,
have greater representation than Alberta and British
Columbia, even though the latter provinces have
populations which are three to five times greater.
Ontario has greater per capita representation in the
Senate than have either Alberta or British Columbia.
Although the original distribution of Senate
seats was based on the equal representation of the
three regions of Canada at the time of Confederation
the Maritimes, Quebec and Ontario the reality of
contemporary Canadian politics is that provinces and
territories, and not regions, are basic to our sense
of community and identity.
Provinces should therefore replace regions as
the basic units for Senate representation.
Furthermore, it is time to reconsider the
distribution of Senate seats so that the provinces
are more equitably represented. The distribution of
Senate seats is a key issue all reform proposals
have dealt with it in some form or another.
The Canada West Foundation has received strong
support for its position that an elected Senate
should provide the provinces with equal
representation. In 1981, the Foundation declared:
For political purposes, Canada is divided
into a number of regions that go under the
label of "provinces", and this political
reality should be reflected in the equal
representation in the Senate of all
provinces.... Other federal systems
(Australia, the United States, Switzerland)
possess upper chambers whose members are
drawn in equal numbers from each constituent
unit, regardless of the differences in
population. These systems accept as
legitimate the dual nature of the
representation that is required in a federal
system: the representation of citizens in the
national legislative process on the basis of
both population and region.
Others have rejected equal representation
because of the very large differences in provincial
populations. This latter position was supported by
the Special Joint Committee of the Senate and the
House of Commons on Senate Reform in 1984, in the
following terms:
We therefore concluded that, while providing
for substantial over-representation of the
less populous provinces and territories, we
should propose a distribution that reflects
the Canadian reality more accurately than
simple numerical equality can do.
The final communique of the June 1990 First
Ministers' Conference on the Constitution indicated
the agreement of all 11 governments that the less
populous provinces and territories should be more
equitably represented in the Senate. Therefore, the
Government of Canada proposes that the composition
of the Senate provide for much more equitable
provincial and territorial representation than at
present. The Government of Canada asks the Special
Joint Committee to recommend the most appropriate
number and distribution of Senate seats to ensure a
much more equitable provincial and territorial
representation while taking account of:
Canada's linguistic duality;
the nearly 80-fold difference in provincial
populations;
the small number of provinces in Canada;
the need for aboriginal representation; and
the method of election of the House of
Commons.
In so doing, the Committee may wish to examine
the experience of other federal systems such as
Germany, which provides three seats in the Bundesrat
for small L nder (the German version of our
provinces), four seats for mid-size L nder, and five
seats for the largest L nder. It may also wish to
review the specific proposals of the Canada West
Foundation for equal representation and those of the
Macdonald Royal Commission which proposed an
equitable Senate.
c) Powers of the Senate
The Government of Canada's underlying principle
in respect of the appropriate powers for a reformed
Senate is that the House of Commons should remain
the primary legislative body for Canada. The Senate
should not, therefore, be a confidence chamber:
legislative defeat in the Senate should not lead to
the resignation of the government. The Australian
experience in this respect has led to instability
and a constitutional crisis and must be avoided.
However, an elected upper house must have real
powers to be effective and provide the necessary
regional balance to Canada's Parliamentary
institutions.
For this reason, the Government of Canada
believes that, as a general rule, in order for
measures to become law, approval of both the Senate
and the House of Commons should be required as at
present.
For matters of language and culture, the
Government of Canada proposes that the Senate also
have a double majority special voting rule. This was
recommended by the Alberta Legislative Committee in
1983 and the Government of Newfoundland and Labrador
in 1989.
The Senate should, however, not be able to
override the House of Commons in relation to matters
of particular national importance, such as national
defence and international issues. In these cases,
the Government of Canada proposes that the Senate
have a six-month suspensive veto, following the
expiry of which the House of Commons would be
required to repass the legislation for it to become
law.
Since the Senate would not be a confidence
chamber, the Government proposes that the Senate
have no legislative role in relation to
appropriation bills and measures to raise funds
including borrowing authorities.
Only the House of Commons will be a confidence
chamber under these proposals.
It is the view of the Government of Canada that
a reformed Senate should also continue the practice
of undertaking special inquiries as it has done in
the past (for example, the Report of the Special
Senate Committee on Poverty, "Poverty in Canada";
and the Report of the Special Senate Committee on
Retirement Age Policies, "Retirement without Tears")
to provide the Government with valuable input into
issues of public policy. Also, Senators should
continue to be allowed to sit in the federal Cabinet
to ensure adequate regional representation in the
Cabinet.
The overall objective of Senate reform should be
one of balance: creating an elected Senate with
sufficient powers and legitimacy to meet the
challenge of effective representation, while at the
same time maintaining the present relationship of
the Cabinet to the House of Commons. This balance
can be found. In this respect, the Government of
Canada expects that the Special Joint Committee will
ensure that Senate reform issues receive full
consideration in its hearings across the country.
Ratification of Appointments
Canadians want a more open form of government
and more responsive institutions generally, with an
increased capacity for federal decision-making to
respond to regional interests and sensitivities. In
making appointments to regulatory boards and
agencies, the Government of Canada has a
responsibility to ensure the appropriate
representation of women, visible minorities,
language groups, aboriginal peoples, and the
disabled, as well as to ensure that regional
interests are represented. For this reason, the
Government of Canada proposes that the Senate should
have a mandate to ratify the appointment of the
Governor of the Bank of Canada and the appointments
of the heads of national cultural institutions, such
as the Canadian Broadcasting Corporation, the
National Film Board, the National Library, the
National Archives, the national museums, the
Canadian Film Development Corporation, the Canada
Council, and the National Arts Centre; as well as
the heads of regulatory boards and agencies, such as
the National Energy Board, the National
Transportation Agency, the Canadian Radio-televison
and Telecommunications Commission, the Immigration
and Refugee Board, and the proposed Canadian
Environmental Assessment Agency.
2.3 The Supreme Court of Canada
The Supreme Court of Canada plays an important
constitutional role with respect to disputes between
federal and provincial governments over the
distribution of powers under the Constitution, and
with respect to the adjudication of cases involving
the Canadian Charter of Rights and Freedoms. At
present, the Court is the creature of a federal
statute which specifies its composition and
jurisdiction. The Supreme Court Act ensures that at
least three of the nine Supreme Court justices
appointed are from the Quebec bar, the only province
with a civil law system. Three justices usually come
from Ontario, two from the West and one from
Atlantic Canada. There is, currently, no requirement
for the federal government to consult with the
provinces.
The Meech Lake Accord had proposed to entrench
the Supreme Court and its existing composition in
the Constitution. Such an amendment would require
the unanimous consent of the Parliament of Canada
and all 10 provincial legislatures. The Government
continues to support these Meech Lake Accord
proposals and would be prepared to recommend them if
it were found desirable to proceed with any
unanimity items in the final package.
Amending the Constitution to provide for a
provincial and territorial role in the appointment
process does not require unanimity. Therefore, the
Government of Canada proposes a constitutional
amendment through which Supreme Court vacancies
would be dealt with in the following manner:
the Minister of Justice would ask the
appropriate Minister(s) of Justice and
Attorney(s) General to submit a list of five
nominees within 90 days; and
the Government of Canada would appoint
justice(s) acceptable to the Queen's Privy
Council of Canada from those lists.
If names are not submitted within the specified time
period, the Government of Canada would be able to
proceed on its own to nominate a Supreme Court
justice.
2.4 The Constitutional Amending Formula
The formula for amending the Constitution itself
is a key issue on the constitutional agenda.
Conferences of First Ministers were held from 1927
to 1981 for over 50 years to find a procedure to
amend Canada's Constitution and permit its
patriation. Full agreement eluded First Ministers.
Agreement among the Prime Minister and nine premiers
was achieved in November 1981 on a patriation
package that included an amendment procedure, but
the Government of Quebec representing over a
quarter of the population of Canada was not a
party to the agreement. The National Assembly of
Quebec subsequently rejected the agreement. Although
now legally bound by the Constitution Act, 1982,
Quebec continues to challenge that Act's political
legitimacy because it altered the constitutional
powers of the Quebec National Assembly without the
latter's consent.
It was to address this issue of legitimacy and
to ensure that Quebec once again became an active
partner in pursuing Canada's constitutional
evolution that the Meech Lake Accord was negotiated.
The Meech Lake Accord would have made two changes to
the amending formula now in place:
the unanimous support of Parliament and the
legislative assemblies of all the provinces
would have been required for amendment of a
number of additional matters, such as Senate
reform and the creation of new provinces,
which currently require the consent of
Parliament and two thirds of the legislative
assemblies for amendment; and
compensation would have been provided to a
province opting out of any amendment
transferring provincial legislative powers to
Parliament.
These two changes to the existing amendment
procedure were unanimously supported by all First
Ministers in April 1987 and in June 1990.
Following the failure of the Meech Lake Accord,
the Government established the Beaudoin-Edwards
Special Joint Committee to review the issue. That
Committee recommended a new amending formula which
would require the consent of Parliament and the
legislative assemblies of Ontario, Quebec, at least
two Atlantic provinces and at least two Western
provinces, representing at least 50 percent of the
population of these regions, for most major
amendments. This recommendation has failed to
attract the unanimous support which would be
required to change the amending formula.
Most of the constitutional proposals set out in
this document including Senate reform could be
enacted with the support of seven provinces
representing 50 percent of the population. This is
not the case with the amending formula.
Nevertheless, the Government of Canada continues to
support the proposal for amending Canada's
Constitution included in the Meech Lake Accord. The
Government would be prepared to proceed with this
proposal if a consensus on this matter were to
develop over the course of the next five months; if
the accession of existing territories to
provincehood were to proceed on the basis of the
current amending formula; and if it were found
desirable to proceed ultimately with any unanimity
items in the final package.
Proposals
8. House of Commons. The Government of Canada
commits itself to a process of further parliamentary
reform to give individual MPs more free votes and to
reduce the application of votes of confidence.
9. Principles of Senate reform: an elected,
effective and more equitable Senate. The Government
of Canada proposes that:
the Senate be directly elected;
Senate elections coincide with elections to
the House of Commons;
the Senate's composition provide for much
more equitable provincial and territorial
representation than at present;
the House of Commons remain the primary
legislative body;
as a general rule, in order for measures to
become law, approval of both the Senate and
the House of Commons should be required as at
present;
for matters of language and culture, the
Senate would also have a double majority
special voting rule;
for matters of national importance, such as
national defence and international issues,
the Senate would have a six-month suspensive
veto. Following expiry of the suspensive
veto, the House of Commons would be required
to repass the legislation for it to become
law;
since the Senate is not a confidence chamber,
the Senate would have no legislative role in
relation to appropriation bills and measures
to raise funds including borrowing
authorities;
guaranteed representation be provided for
aboriginal Canadians in the Senate;
the Senate continue to have a mandate to
conduct special inquiries into issues of
public policy.
10. Details of Senate reform. The Government of
Canada proposes that the Special Joint Committee of
Parliament consider the following issues:
the form of direct election to the Senate;
the appropriate number and distribution of
Senate seats;
in consultation with the aboriginal peoples,
the appropriate representation of Canada's
First Peoples.
11. Senate Ratification of Appointments to
Regulatory Boards and Agencies. The Government of
Canada proposes that the Senate be given a mandate
to ratify the appointment of the Governor of the
Bank of Canada and the appointments of the heads of
national cultural institutions, such as the Canadian
Broadcasting Corporation, the National Film Board,
the National Library, the National Archives, the
national museums, the Canadian Film Development
Corporation, the Canada Council and the National
Arts Centre, as well as the heads of regulatory
boards and agencies such as the National Energy
Board, the National Transportation Agency, the
Canadian Radio-television and Telecommunications
Commission, the Immigration and Refugee Board, and
the proposed Canadian Environmental Assessment
Agency.
12. Appointments to the Supreme Court of
Canada. The Government of Canada will introduce a
constitutional amendment to provide for a role for
the provinces and the territories in Supreme Court
appointments whereby appointments would be made by
the federal government from lists of nominees
submitted by provincial and territorial governments,
the individual appointed being acceptable to the
Queen's Privy Council of Canada.
In addition, the Government of Canada would be
prepared to proceed with the entrenchment in the
Constitution of the Supreme Court and its
composition if it were found desirable to proceed
with any unanimity items in the final package.
13. The Constitutional Amending Formula. The
Government of Canada would be prepared to proceed
with changes to the amending formula as specified in
the Meech Lake Accord if a consensus on this matter
were to develop; if the accession of existing
territories to provincehood were to proceed on the
basis of the current amending formula; and if it
were found desirable to proceed ultimately with any
items requiring unanimous consent in the final
package.
Part III
Preparing for a
more Prosperous Future
The Canadian federation has proven very flexible
in adapting to change. Nevertheless, it is time to
consider some improvements to the way we govern
ourselves and to the way governments manage their
affairs so we may better reflect the realities of
modern-day Canada.
Many elements of the Canadian federation need
not be changed. The federal government will continue
to ensure that all Canadians have equal access to
the entitlements of their citizenship. This includes
the redistribution of resources in the form of
equalization payments an obligation of the federal
government written into the Constitution under
section 36. Section 36 also commits both the federal
and provincial governments to promote equal
opportunities for the well-being of Canadians, to
further economic development, to reduce disparities
in opportunity, and to provide essential public
services of reasonable quality to all Canadians.
Also important to Canadians is the income
security system. By making direct payments to
Canadians, such as pensions and family allowances,
and by supporting the welfare system managed by the
provinces, the federal government plays a critical
role in ensuring the well-being of all Canadians.
The Government of Canada recognizes that its ability
to mitigate the effects of regional economic
disparities through these instruments is of
particular importance to Atlantic Canada. The
federal government will continue to promote economic
development initiatives across the country so that
Canadians in all regions have the opportunity to
live and work within their own communities, and to
maintain a satisfying quality of life for their
families.
The Government of Canada will maintain its
ability to ensure that all Canadians continue to
receive the benefits of Canadian citizenship,
regardless of where they live or what they do. We
are bound together as a society by our belief in the
fundamental obligation to share our wealth with our
fellow Canadians. The federal government will
continue to support this principle in the future, as
it does today.
However, the Government of Canada is of the view
that change is required in a number of important
areas to ensure Canada's future prosperity and to
serve Canadians better. Specifically, the Government
will address issues related to the management of the
economic union, the distribution of some powers
between the federal and provincial governments, and
the way governments work together. The following
criteria underlie the proposals for change in these
areas:
Canadian goals. The federal government must
be able to express the Canadian identity and
achieve common Canadian goals.
Respect for diversity. Federalism reconciles
the need for certain strong common powers
with the ability to accommodate and reflect
different regional needs and objectives in
other areas. These different needs and
objectives should be pursued by the
provinces.
Simplicity. Government should be kept as
close to the people as feasible. This is what
has been described in the European Community
as the principle of "subsidiarity." The
federal government should be involved where
there is a need for a common policy or where
its assumption of the responsibilities would
enhance efficiency.
Shared responsibility. There are areas in
which neither the federal government nor the
provincial governments can act alone to
achieve shared goals. In these cases, a joint
federal-provincial effort to manage
interdependence in the interests of all
Canadians is essential.
3.1 A Stronger Economic Union
One of the principal driving forces behind
Confederation more than a century ago was the vision
that for certain matters more could be accomplished
together than apart: that Canada could provide a
better future for its citizens as one country. And
in that one country there could be respect for
diversity embodied in strong provinces. The
provinces that joined together to form that country
formed a political union, but also an important
economic union.
The world has changed a great deal since 1867.
Canada faces a rapidly changing and increasingly
competitive international economy. Canada is not
insulated from these forces. To ensure our future
well-being and prosperity, we must create
opportunities for our economy to adjust and grow in
a manner which will enhance our capacity to compete
in the global world economy. It is evident that
individual Canadians will be key to this response as
entrepreneurship, knowledge and technology determine
the cutting edge of competitiveness.
Some things have not changed since 1867. In
fact, the benefits of economic integration that
brought us together are even more compelling now in
the face of recent and ongoing continental and
global economic change. And, the ultimate goal of
any country is still, and always will be, to provide
a better future for its citizens and their children
by ensuring their economic security and well-being.
The prosperity that Canadians enjoy today is the
proof of the benefits that are attainable. Canada
has the second-highest standard of living among the
major industrialized nations. From 1961 to 1990,
Canada's rate of economic growth was second only to
Japan's among the world's seven largest economies.
Over the same period, Canada has had the fastest
rate of growth of employment of jobs created.
But these figures mask some real challenges to
our prosperity: the rate of growth of Canada's
productivity has slowed in recent years; one-third
of young Canadians drop out without even finishing
high school; illiteracy rates are high; and
investment in research and development by Canadian
industry is lower than in other leading industrial
countries. Our past performance is no guarantee for
the future. Canada must ensure that it has the tools
in place to ensure that future generations also
enjoy the high standard of living that we have
today. To prosper we must change. We must improve
the way we manage our economic problems and
opportunities. We must do a better job of
integrating economic activity and our concerns about
the environment.
Canada could not continue to provide the same
level of economic benefits without the political
union of its provinces. Effective economic
integration requires political integration. There
are real benefits from having access to a larger
market, guaranteed access to inputs, access to new
technology and the ability to share risk.
Federalism has allowed Canadians to benefit from
an economic and political union which has provided
not only for a common currency and banking system,
the mobility of factors of production between the
provinces, and a common financial market, but also
for a highly developed network of social programs,
and a regime to share the country's wealth among its
regions and people. At the same time, federalism has
accommodated different regional needs and objectives
in other matters.
While the process of amending the Constitution
may seem somewhat removed from the daily lives of
Canadians who are concerned about their jobs, and
jobs for their children, this process provides an
opportunity to take actions to strengthen our
economic union. We must enhance the operation of our
internal market. We must improve the harmonization
and coordination of economic policies. Governments
must work together better on behalf of Canadians to
ensure a better future for all Canadians.
Enhancing Trade and Mobility within Canada
A strong and well-functioning domestic market is
essential to the well-being of all Canadians.
Existing barriers to the mobility of people, goods,
services and capital within Canada impede trade
among the provinces and limit the mobility of
individual Canadians. The inability of Canadians to
benefit fully from the advantages of an internal
market weakens their ability to compete effectively
in the global economy.
The Constitution Act, 1867 contains a section
(section 121) referred to as the "common market
clause," which was put in place at the time of
Confederation to prohibit barriers to trade. Section
121 stipulates that goods from any province shall be
admitted freely into the other provinces. This
clause does not reflect the realities of today's
marketplace. It does not mention the mobility of
capital or of services. It does not provide for the
full mobility of people which not only is important
to the operation of the economic union, but is a
basic right of all Canadians.
In order to ensure that people, goods, capital
and services can move freely within Canada, the
Government of Canada proposes that section 121 of
the Constitution be modernized to enhance the
mobility of persons, capital, services and goods
within Canada by prohibiting any laws, programs or
practices of the federal or provincial governments
that constitute barriers or restrictions to such
mobility. This would provide all Canadians with the
right to pursue the livelihood of their choice and
economic opportunities wherever they choose to do so
in Canada. The Government of Canada further proposes
that the new section 121 would come into force on
July 1, 1995, in order to allow for a period of
transition and adjustment to the elimination of
these barriers.
This proposal should not delay current efforts
to eliminate interprovincial barriers to trade.
Federal and provincial governments should pursue
their efforts to dismantle these barriers. A process
should be adopted as soon as possible which would
commit governments to eliminating barriers within
the internal market at the earliest possible date.
There may be some situations in which overriding
interests or considerations would preclude
governments from eliminating a barrier. In
recognition of this, the amendment proposed to
section 121 allows for exceptions for reasons of
national interest, and would not apply to
legislation promoting regional development or
equalization. The Special Joint Committee should
consider whether other exceptions to the proposed
section 121 would be appropriate.
Strengthening the Economic Union
The proposed amendment to section 121 would not
eliminate all problems in Canada's internal market.
Governments would still have to play a leadership
role to ensure the effective operation of the
internal market and a strong economic union.
Both federal and provincial governments have a
role to play in the management of the economic
union. Accordingly, while the federal government
should have the necessary authority to manage the
economic union, that authority should not be
unfettered. The challenge is one of shared
responsibility; the response is one of
intergovernmental collaboration and consultation.
The Government of Canada, therefore, proposes
that the Constitution be amended to provide
Parliament with a new power to make laws for the
efficient functioning of the economic union. Since
the management of the economic union is an area of
shared responsibility, federal legislation under
this new power could not be enacted without the
approval of at least seven of the provinces
representing 50 percent of the population.
Once approved, the law would be binding on all
provinces and the federal government. However, a
province which did not support the legislation (up
to three according to the decision-making rules)
could opt out of the federal law for three years by
passing a resolution with the support of 60 percent
of the members of the provincial legislature. The
federal law would then not apply in that province.
The Government of Canada proposes that the Special
Joint Committee should consider whether the opting-
out provision should be renewable.
Since this new power would provide a mechanism
for shared management of the economic union by the
federal and provincial governments, its entrenchment
would allow for the transfer and/or decentralization
of powers and responsibilities in a number of
specific sectors to bring decision-making closer to
the people.
This new power will help Canada prepare for the
future and face the challenges of the 21st century.
It will provide a mechanism for the establishment of
Canadian objectives, norms and standards in a number
of areas essential to the efficient operation of the
economic union.
Similarly, this new power can also help
strengthen Canada's financial sector, to enhance the
functioning of the economic union. The Government of
Canada will work actively with the provinces in this
area to clarify responsibilities. In this respect,
the Government intends to address the issue of
overlap and duplication in the regulation of trust
companies. The federal government will also work
closely with the provinces to develop more efficient
and better coordinated corporate securities
regulation which will be essential in an
international environment where unnecessary
duplication risks business going elsewhere. It will
also be important for Canada to have a more
effective presence in international groups dealing
with securities matters.
Harmonizing Economic Policies
The effective fiscal policy coordination of all
Canadian governments is important to the long-term
growth prospects of Canada's economy and to the
future prosperity of all Canadians.
Federal and provincial governments each pursue
their own spending and tax policies to improve
standards of living, to reduce unemployment and to
control inflation. Since the end of the Second World
War, provincial spending and tax policies and their
impact on the management of the economic union have
increased dramatically. This has increased the risk
that the tax and spending policies of the provinces
and those of the federal government may operate at
cross purposes. This conflict can reduce the growth
of the economy and affect an individual's standard
of living. Such divergence in federal and provincial
policies also complicates the task of maintaining an
effective national monetary policy, which is the
other major instrument used to achieve economic
objectives.
Through its participation in international
organizations like the Organization for Economic
Cooperation and Development (OECD) and the
International Monetary Fund (IMF), Canada is
committed to coordinating its economic policies with
those of the other large industrialized countries to
strengthen the growth of the world economy from
which all of our individual economies benefit. While
such coordination is important to provide a sound
basis for long-term prosperity, there is no
mechanism within Canada to ensure that the economic
policies of the federal and provincial governments
are coordinated.
Fiscal coordination would be greatly facilitated
by making the budget processes of the federal and
provincial governments more open and visible.
Certainly this has been the experience of other
federations which have developed procedures to share
information and consult with each other in the
development of their annual budgets without
compromising necessary safeguards against the
improper exploitation of the process. The Government
of Canada, therefore, proposes to develop with the
provinces an annual timetable to allow for more open
and visible federal and provincial budget-making
processes that would include:
a relatively fixed annual budget cycle;
a fixed annual schedule of Finance Ministers'
meetings;
the publication by the 11 governments of pre-
budget economic/fiscal outlooks; and
common accounting conventions.
The Government of Canada proposes to develop,
with the provinces, guidelines to improve the
coordination of fiscal policies and the
harmonization of fiscal policies with Canada's
monetary policy. Once developed, the guidelines
would be set in federal legislation under the new
economic union power. Accordingly, these guidelines
would require the approval of at least seven of the
provinces representing 50 percent of the population,
and up to three provinces could opt out.
The Government of Canada also proposes to
discuss with the provinces the establishment of an
independent agency to monitor and evaluate the
macroeconomic policies of the federal and provincial
governments. Such an agency could perform a role for
Canadian governments not dissimilar to that
performed by the OECD and the IMF for their members.
The monitoring function would furnish an
indispensable information base that would be
publicly available to assist the task of policy
coordination and harmonization.
In order to improve the harmonization between
monetary policy and the fiscal policies of the
different levels of government, the Government of
Canada proposes to amend the Bank of Canada Act to
make it clear that the mandate of the Bank is to
achieve and preserve price stability. To ensure
regional representation on the Board of Directors of
the Bank of Canada, the Government will solicit the
views of provincial and territorial governments and
consult with them before making appointments to the
Board. In addition, the Government proposes to
create regional consultative panels to advise the
Directors of the Bank on regional economic
conditions. The Government will also solicit the
views of provincial and territorial governments with
respect to the membership of the regional panels.
Moreover, as discussed above, the appointment of the
Governor of the Bank of Canada would be subject to
Senate ratification.
3.2 Serving Canadians Better
In a number of areas, Canadians would be better
served if decision-making were brought closer to the
people. Federalism provides governments with this
ability to pursue different regional needs and
objectives in some areas while pursuing common
objectives in others.
The Government of Canada is of the view that
there is a need to adjust the distribution of powers
between federal and provincial governments in
certain areas and to clarify the responsibilities of
each level in other areas. There are areas which
were not mentioned in the 1867 Constitution. Others
have been the subject of debate between governments
for many years. It is important for governments to
respect each others' jurisdictions and
responsibilities even if few areas can be perfectly
compartmentalized in a rapidly changing global
environment. To serve Canadians better and to avoid
costly and disruptive overlap and duplication,
governments must better respect the division of
responsibilities. This is particularly critical in
areas where both the federal and provincial
governments have roles to play.
Change is not proposed for the sake of change:
sectors that function well should not be adjusted.
Change is only proposed when it will improve the
service or program Canadians receive.
There are various avenues available to adjust
and to clarify responsibilities some
constitutional, some administrative. In cases where
jurisdictions are not defined, the Constitution can
be amended to make them explicit. In areas where
both levels of government have a legitimate role,
the different responsibilities of the levels of
government can be clarified in bilateral agreements.
Such agreements can be entrenched in the
Constitution to guarantee their permanence. All
these options will be contemplated in the proposals
that follow.
1. Labour Market Training
Labour market training is key to Canada's future
prosperity. Training is also important to a worker's
mobility within the country. It is essential for
businesses that depend increasingly on a highly
skilled labour force to gain and maintain a
competitive edge. Therefore, the federal and
provincial governments, employers and employees all
have a direct interest in this field. In fact, an
enhanced private sector role in training and
standard-setting will be critical to Canada's future
competitiveness. In the future, training will
require full partnership of all the players in the
economy.
Skills training for the labour market is
intimately related to the educational system, which
is an area of exclusive provincial jurisdiction. It
is also a program area that should be delivered on a
local basis. The Government of Canada, therefore,
proposes a constitutional amendment to recognize
explicitly that labour market training is an area of
exclusive provincial jurisdiction.
Given the importance of training to Canada's
international competitiveness and future prosperity,
leadership in the area of skills standards should be
exercised jointly by the federal and provincial
governments through the new head of power for
managing the economic union. Setting standards and
objectives will be essential to develop an
internationally competitive labour force and to
preserve and enhance the mobility of individuals
within Canada.
2. Immigration
Immigration is one of the few areas of formal
concurrent jurisdiction between federal and
provincial governments which is defined in the
Constitution. Provision for concurrency was put into
the Constitution Act, 1867, with the stipulation
that the federal government had paramountcy in cases
of conflict.
The Government of Canada must maintain
responsibility for providing citizenship and
citizenship services, and for establishing the total
number of immigrants and national standards and
objectives related to immigration. Within this
framework, the Government of Canada is prepared to
negotiate with all provinces bilateral agreements
appropriate to the circumstances of each. An
agreement which respects both federal and provincial
interests has already been concluded with Quebec,
and negotiations are under way with other provincial
governments. In addition, to ensure greater security
for these agreements, the Government of Canada
proposes to constitutionalize the agreement with the
province of Quebec, and any other agreements that
are negotiated.
3. Culture
Canada's national identity reflects the coming
together of rich cultural histories and traditions
rooted in the very history and beginnings of the
Canadian people.
The duality of Canada's cultural milieux has
contributed to the country's richness and diversity.
Our identity is enriched by two very different but
intensely vibrant cultural realities and
strengthened greatly by the aboriginal cultures that
preceded them and by the many diverse multicultural
experiences and traditions more recently added to
the cultural reality of Canada.
Our challenge, therefore, is to ensure, on the
one hand, the maintenance of important Canada-wide
institutions that help us promote our identity. On
the other hand, Canada's cultural policies and
jurisdictions must offer the flexibility of ensuring
that the roots of culture are enhanced and enriched
and that there are no impediments to provincial
governments playing the roles they deem appropriate
in the cultural field.
Views on the appropriate roles for governments
in this area may vary widely, and the current
sharing of responsibilities between federal and
provincial governments may be appropriate in most
provinces. However, language and culture have always
been the clearest expression of the distinctiveness
of Quebec society. And the Government of Quebec, as
the only senior government in North America
representing a population which is predominantly
French-speaking, has special responsibilities for
the preservation and promotion of Quebec's cultural
identity because of the intense pressures that
emerge from the simple fact that, of 276 million
people in North America, only 7 million have French
as a mother tongue.
The Government of Canada will, therefore,
negotiate with the provinces, upon their request,
agreements appropriate to the particular
circumstances of each province to define clearly the
role of each level of government. Where appropriate,
such agreements would be constitutionalized. While
these agreements will recognize the important
community dimension of culture, and the special
responsibilities of the Government of Quebec in this
area, the Government of Canada will maintain
responsibility for existing Canadian cultural
institutions (such as the CBC/Radio Canada, the
national museums, the National Film Board, the
Canada Council, the National Library, the National
Archives, Telefilm and the National Arts Centre)
that allow for the expression and dissemination of
Canada's identity both within Canada and abroad.
4. Broadcasting
Broadcasting is an area of importance both to
Canada's identity and to cultural expression.
Accountability for regulating the broadcasting
sector is appropriately located at the federal level
because activities in the field cross provincial and
international boundaries. Nevertheless, there is
room to enhance the role of the provinces in this
field and eliminate some irritants.
The Government of Canada, therefore, proposes
to:
1. consult with the provinces on the issuance of
new licences;
2. provide provincial governments and their agents
with the opportunity to evolve into full public
broadcasting undertakings with varied programming,
subject to CRTC regulation;
3. further regionalize the operations of the CRTC
and expand the roles of its regional offices;
4. allow for provincial participation in the
nomination of regional commissioners of the CRTC.
5. Federal Residual Power
The "Peace, Order and Good Government clause" of
section 91 of the Constitution Act, 1867 gives the
Parliament of Canada the authority to legislate in
three areas: matters of national emergencies;
matters of national dimensions; and all other
matters not specifically assigned in the
Constitution. The Government of Canada proposes to
reserve to itself the Peace, Order and Good
Government clause to maintain its authority to deal
with national matters and emergencies. However, the
Government of Canada is prepared to transfer to the
provinces authority for non-national matters not
specifically assigned to the federal government
under the Constitution or by virtue of court
decisions.
6. Federal Declaratory Power
The declaratory power (section 92(10)(c) of the
Constitution Act, 1867) enables the federal
government to shift legislative jurisdiction for a
"work" from the provinces to the federal government
by declaring it to be for the general advantage of
Canada. The Government of Canada proposes an
amendment to the Constitution to eliminate the
declaratory power. Its elimination from the
Constitution would remove a potential federal-
provincial irritant.
7. Recognizing Areas of Provincial Jurisdictions
There are a number of sectors which are more
properly the responsibility of the provinces whether
or not they are specifically assigned in the
Constitution. The federal government is involved in
some of these sectors because of its own
responsibilities, for example, for international
affairs, for native people and for research and
development. In other areas of exclusive provincial
jurisdiction, the federal government has intervened
in the past primarily through the use of the federal
spending power.
The Government is committed to ensuring the
preservation of Canada's existing research and
development capacity and to maintaining
constitutional obligations for international and
native affairs. Within this framework, it is
prepared to recognize the exclusive jurisdiction of
the provinces in the following areas and to withdraw
from these fields in a manner appropriate to each
sector and respectful of the provinces' leadership:
The growing complexity of society both within
Canada and around the world means that it is not
possible to allocate all functions perfectly to
different levels of government. There are areas in
which governments must work together to achieve
common objectives. In other areas, there is a need
to eliminate unnecessary overlap and duplication
resulting from the expanding role of governments and
to reduce the cost of government where possible.
Concern with overlap and duplication in
government programs and regulations dates at least
as far back as the 1937 Rowell-Sirois Commission.
Progress in rationalizing and coordinating the
programs of the two senior levels of government has
been made through exercises such as the 1978
federal-provincial review and the 1984-85 federal
Ministerial Task Force on Program Review.
However, there remains significant room for
improvement in rationalizing and harmonizing federal
and provincial programs. To avoid the costs and
disruptions resulting from overlap and duplication,
governments must respect the division of
responsibilities and work better together in areas
of shared jurisdiction.
The objective is the elimination of unnecessary
costs to individuals, to the private sector and to
governments. Costs arise from public confusion about
which level of government delivers what service and
from the administrative burden to clients who must
deal with multiple levels of government (and, for
example, fill out multiple sets of forms) or who
must find ways of dealing with incompatible
requirements of different governments. Economic
costs occur where federal and provincial objectives
are inconsistent, with a resulting reduction in the
effectiveness of both sets of programs.
Administrative Delegation
Administrative delegation is one instrument
which can result in significant program
rationalization and harmonization. Through
administrative delegation, the federal and
provincial governments could transfer programs or
activities to each other, to local governments, or
to the private sector.
With administrative delegation from the federal
to other levels of government, for example, program
standards would still be set by the federal
government but program delivery could vary within
general guidelines from jurisdiction to
jurisdiction. In this way, administrative delegation
would provide an opportunity to improve program
efficiency and responsiveness.
Administrative delegation is already used to
harmonize and rationalize federal and provincial
programs in some areas. For instance, most provinces
delegate to the federal government the authority to
collect personal and business income tax on their
behalf. Federal consumer products inspectors help
enforce provincial food standards through
administrative agreements. Management of inland
fisheries has been delegated to most provinces under
administrative agreements.
Legislative Delegation
Another option for rationalizing federal and
provincial authority is legislative delegation. This
option would require a constitutional amendment
which would permit federal and provincial
governments to delegate to each other the authority
to legislate in a given field. It would allow
governments to adapt quickly to changing
circumstances or respond to particular conditions.
Legislative delegation would not alter the current
division of constitutional powers, since the
delegating government would retain the authority to
revoke any legislation.
This mechanism could be very flexible in its
application. Governments could delegate a general
area of authority with broad scope for legislation,
or a very narrow area with specified constraints
that would nonetheless provide for some regulatory
flexibility. Delegation arrangements need not be
identical with all provinces. Some provinces may be
in a better position to enact and implement new
authorities than others. Also, if provinces choose
not to exercise delegated authorities, federal
legislation and regulations would continue to apply.
It is for these reasons that the Beaudoin-Edwards
Joint Parliamentary Committee, reporting in June
1991, strongly recommended such a constitutional
amendment.
The Government of Canada, therefore, supports
the insertion in the Constitution of a provision to
enable the delegation of legislative authority
between the two levels of government with the mutual
consent of the legislative bodies involved.
Candidates for Streamlining Proposals
There are many areas where the federal
government is prepared to delegate its program
delivery responsibilities in order to provide better
service to Canadians and/or reduce costs. Other
areas would be candidates for rationalizing the
involvement of both levels of government. Therefore,
the Government of Canada proposes the following
areas as candidates for early discussion with the
provinces for either administrative delegation
and/or legislative delegation as appropriate in each
individual case:
drug prosecutions
wildlife conservation and protection
transportation of dangerous goods
soil and water conservation
ferry services
small craft harbours
some aspects of financial sector regulation
some aspects of bankruptcy law
some aspects of unfair trade practices
inspection programs
Inspection programs are undertaken in a
multitude of areas, including food, drugs,
fisheries, labour operations, weights and measures,
and transportation. In general, specific inspection
activities can be rationalized under either level of
government in areas of mutual interest and
involvement. In some cases, delegation to provincial
governments makes sense while, in other areas, an
expanded federal presence is warranted. The federal
government is prepared to discuss administrative
delegation arrangements in any inspection area with
a view to reducing costs both to governments and to
the private sector.
3.3 The Federal Spending Power
Providing Canadians with the best level of
service possible also requires that the Government
address concerns about the use of the federal
spending power in areas of provincial
responsibility. Federal involvement must not
undermine the possibility for provincial governments
to carry out the policies desired by their own
electorates within the areas of jurisdiction
assigned to them.
The federal spending power is not defined in the
Constitution, but it has been confirmed very clearly
by the Supreme Court. It is inferred from the
federal government's comprehensive taxing power and
its control over "the public debt and property."
In practice, the spending power encompasses the
expenditures of the federal government in a broad
range of areas and in a broad number of forms (for
example, Canada-wide shared-cost programs with the
provinces, such as health care; bilateral federal-
provincial agreements, such as regional development
agreements; or federal payments to organizations and
individuals, such as Canada Council grants).
The exercise of the federal spending power gives
rise to serious and often impassioned debate. Many
Canadians regard it as essential for establishing
and maintaining basic Canadian norms in social
policy. Its proponents including many in Atlantic
Canada see it, therefore, as a means of bringing
about a fair distribution of the benefits of
economic union, of dealing with regional disparities
and of maintaining an instrument for binding Canada
together as a country. Others, by contrast, believe
that where the spending power has been used by the
federal government to gain entry into an exclusive
provincial domain, its exercise is illegitimate.
Traditionally, Quebec's requests for federal
withdrawal from certain fields have centred on areas
of exclusive provincial jurisdiction in which the
federal government had intruded through the use of
its spending power. Critics also tend to argue that
where the powers of the federal and provincial
governments overlap, the use of the federal spending
power gives rise to duplication, inefficiency, lack
of accountability and over-government.
Some of these are valid concerns, as the federal
government has acknowledged in constitutional
discussions since 1969. To address them, both levels
of government need to establish a new set of ground
rules for the exercise of the federal spending
power. The provincial governments must be given
safeguards that alleviate their concerns about
federal intervention in their areas of jurisdiction.
The federal government must have safeguards that
protect its ability to ensure that the consistency
and availability of public services across the
country are not jeopardized.
The Government of Canada must have the ability
to continue making transfer payments to individual
Canadians and to organizations. The Government also
affirms its intention to continue making grants to
provincial governments on the basis of bilateral
negotiations, especially in the field of regional
development. Continued cooperation with provincial
governments is essential to fulfilling the federal
responsibility for promoting equal opportunities for
the well-being of Canadians, and for furthering
economic development to reduce disparities in
opportunities.
In response to criticisms about the use of the
federal spending power in fields of exclusive
provincial jurisdiction, the Government of Canada
commits itself not to introduce new Canada-wide
shared-cost programs and conditional transfers in
areas of exclusive provincial jurisdiction without
the approval of at least seven provinces
representing 50 percent of the population. This
provision would be entrenched in the Constitution.
The constitutional amendment would also provide for
reasonable compensation to provinces that choose not
to participate in the new Canada-wide programs but
which establish their own programs meeting the
objectives of the new program. Through such a
process it should be possible at the outset of any
new program to establish both the mechanisms to
ensure that Canadians receive the appropriate level
of service and the terms and conditions for any
change in federal financing for any program approved
in this manner.
3.4 Working Together
Effective intergovernmental collaboration will
be essential to Canada's future well-being. In many
areas, there are Canadian objectives that the
Government of Canada cannot achieve alone: the
provinces have important roles to play. In other
areas, there is a need to collaborate and to
coordinate different policies and programs. Partly
as a consequence, there are currently over 500
intergovernmental conferences and meetings a year,
in addition to high-profile First Ministers'
Conferences, which touch upon the respon-sibilities
and interests of both the federal and provincial
governments.
All federations have found it necessary to
create processes and mechanisms to manage the
interdependence of governments, for, in practice,
federal and provincial functions cannot be placed in
watertight compartments. In other federations which
have combined parliamentary and federal
institutions, this process of collaboration has been
achieved primarily through consultation between
federal and provincial executives.
Our vast network of intergovernmental
consultation has significant achievements to its
credit, including the establishment of Canada-wide
shared-cost programs and the social safety net of
which Canadians are justifiably proud. However, it
has not proven to be an effective mechanism of
collaboration there are no decision-making rules
and there is no formal process of consultations. At
the same time, the current system has attracted much
public criticism because of the closed nature of
many inter-governmental discussions. These problems
take on added significance now that governments are
more interdependent than ever before.
The success of Canada's efforts to modernize our
federation and the future health of the economic
union will depend on the establishment of effective
means for governments to work together. We must
harness the existing system of executive federalism
to improve it and make it more open to public
scrutiny and input.
The Government of Canada, therefore, proposes
the establishment of a Council of the Federation
composed of federal, provincial and territorial
governments that would meet to decide on issues of
intergovernmental coordination and collaboration.
The result would be a more publicly visible, more
productive and less confrontational process of
intergovernmental relations. The Council would not
be another layer of government. The objective of the
Council would be to improve the management of the
interdependence of government actions inherent in
our federal system. Given the importance of
intergovernmental collaboration, the Government of
Canada is prepared to entrench the Council in the
Constitution.
The Council of the Federation would have the
following mandate:
1. to vote on proposed federal legislation under
the proposed new head of power to enhance the
functioning of the Canadian economic union;
2. to vote on common guidelines for fiscal
harmonization and coordination, and make decisions
on improved processes for future collaboration in
this area;
3. to make decisions on the use of the federal
spending power on new Canada-wide shared-cost
programs and conditional transfers in areas of
exclusive provincial jurisdiction.
All decisions of the Council of the Federation
would require the approval of the federal government
and of at least seven provinces representing 50
percent of the population.
This Council must be designed in close
collaboration with provincial and territorial
governments to maximize the effectiveness of the
process. The Special Joint Committee could use the
following illustrative membership and procedures for
such a Council in its consideration and discussion
of this proposal with Canadians and with the
provincial and territorial governments:
the Council would be composed of ministerial
representatives from the federal government
and each provincial government; governmental
representatives could vary depending on the
nature of the issues being discussed;
territorial representatives would participate
as non-voting members;
representatives would act on behalf of the
government they represent, and each of the
provincial governments would have one vote;
the Council would have no permanent staff or
headquarters. It would be served by the
current resources of the Intergovernmental
Secretariat and would meet on a rotating
basis in existing federal and provincial
facilities.
Proposals
14. Broadening s. 121, the common market
clause. The Government of Canada proposes that
section 121 of the Constitution Act, 1867 be amended
to read as follows:
121. (1)Canada is an economic union within
which persons, goods, services and
capital may move freely without barriers
or restrictions based on provincial or
territorial boundaries.
(2)Neither the Parliament or Government of
Canada nor the legislatures or governments of
the provinces shall by law or practice
contravene the principle expressed in
subsection (1).
(3)Subsection (2) does not render invalid
(a) a law of the Parliament of Canada
enacted to further the principles of
equalization or regional development;
(b) a law of a provincial legislature
enacted in relation to the reduction of
economic disparities between regions
wholly within a province that does not
create barriers or restrictions that are
more onerous in relation to persons,
goods, services or capital from outside
the province than it does in relation to
persons, goods, services or capital from
a region within the province; or
(c) a law of the Parliament of Canada or
of the legislature of a province that has
been declared by Parliament to be in the
national interest.
(4)A declaration referred to in paragraph (3)
(c) shall have no effect unless it is
approved by the governments of at least two-
thirds of the provinces that have, in the
aggregate, according to the then latest
general census, at least 50 percent of the
population of all the provinces.
(5)This section shall come into force on July
1, 1995.
15. Power to Manage the Economic Union. The
Government of Canada proposes that the following
section be added to the Constitution Act, 1867
immediately after section 91:
91A. (1)Without altering any other authority
of the Parliament of Canada to make laws,
the Parliament of Canada may exclusively
make laws in relation to any matter that
it declares to be for the efficient
functioning of the economic union.
(2)An Act of the Parliament of Canada made
under this section shall have no effect
unless it is approved by the governments of
at least two thirds of the provinces that
have, in the aggregate, according to the then
latest general census, at least 50 percent of
the population of all the provinces.
(3)The legislative assembly of any province
that is not among the provinces that have
approved an Act of the Parliament of Canada
under subsection (2) may expressly declare by
resolution supported by 60 percent of its
members that the Act of Parliament does not
apply in the province.
(4)A declaration made under subsection (3)
shall cease to have effect three years after
it is made or on such earlier date as may be
specified in the declaration.
The Government of Canada also proposes that the
Special Joint Committee consider whether the opting-
out provision should be renewable.
16. Harmonization of economic policies. The
Government of Canada proposes to develop, with the
provinces, an annual timetable to allow for more
open and visible budget-making processes.
The Government of Canada proposes to develop,
with the provinces, guidelines to improve the
coordination of fiscal policies and the
harmonization of fiscal policies with Canada's
monetary policy. Once approved, these guidelines
would be set in federal legislation under the new
economic union power. Accordingly, these guidelines
would require the approval of at least seven of the
provinces representing 50 percent of the population,
and up to three provinces could opt out.
The Government also proposes to discuss with the
provinces the establishment of an independent agency
to monitor and evaluate the macroeconomic policies
of the federal and provincial governments.
17. Reforms to the Bank of Canada. The
Government of Canada proposes to amend the Bank of
Canada Act to make it clear that the mandate of the
Bank is to achieve and preserve price stability. To
ensure regional representation on the Board of
Directors of the Bank of Canada, the Government will
solicit the views of provincial and territorial
governments and consult with them before making
appointments to the Board. In addition, the
Government proposes to create regional consultative
panels to advise the Directors of the Bank on
regional economic conditions. The Government will
also solicit the views of provincial and territorial
governments with respect to the membership of the
regional panels. Moreover, the appointment of the
Governor of the Bank of Canada would be subject to
Senate ratification.
18. Training. The Government of Canada proposes
that section 92 of the Constitution Act, 1867 be
amended to recognize explicitly that labour market
training is an area of exclusive provincial
jurisdiction.
19. Immigration. While recognizing the federal
role in setting Canadian policy and national
objectives with respect to immigration, the
Government of Canada is prepared to negotiate with
any province agreements appropriate to the
circumstances of that province and to
constitutionalize those agreements.
20. Culture. The Government of Canada will
negotiate with the provinces, upon their request,
agreements appropriate to the particular
circumstances of each province to define clearly the
role of each level of government. Where appropriate,
such agreements would be consti-tutionalized.
21. Broadcasting. The Government of Canada
proposes to:
1. consult with the provinces on the
issuance of new licences;
2. provide provincial governments and their
agents with the opportunity to evolve
into full public broadcasting
undertakings with varied programming,
subject to CRTC regulation;
3. further regionalize the operations of the
CRTC and expand the roles of its regional
offices;
4. allow for provincial participation in the
nomination of regional commissioners of
the CRTC.
22. The Residual Power. The Government of
Canada proposes to reserve to itself the Peace,
Order and Good Government clause of the Constitution
Act, 1867 to maintain its authority to deal with
national matters or emergencies. However, the
Government of Canada is prepared to transfer to the
provinces authority for non-national matters not
specifically assigned to the federal government
under the Constitution or by virtue of court
decisions.
23. The Federal Declaratory Power. The
Government of Canada is prepared to support a
constitutional amendment to remove the declaratory
power set out in section 92(10)(c).
24. Recognizing Areas of Provincial
Jurisdiction. Within this framework, the Government
of Canada is committed to ensuring the preservation
of Canada's existing research and development
capacity obligations for international and native
affairs. The Government of Canada is prepared to
recognize the exclusive jurisdiction of the
provinces and discuss how best to exercise its own
responsibilities in a manner appropriate to the
sector in the following areas:
25. Legislative Delegation. The Government of
Canada endorses the recommendation of the Beaudoin-
Edwards Joint Parliamentary Committee that there be
a constitutional amendment providing for delegation
of legislative powers between Parliament and the
legislatures, and that there be provisions inserted
in the Constitution to enable the delegation of
legislative authority between the two levels of
government with the mutual consent of the
legislative bodies involved.
26. Candidates for Streamlining. In order to
provide Canadians with the best service at the
lowest possible cost, the federal government is
prepared to discuss with the provinces the
rationalization of government programs and services
by reviewing which level of government can best
deliver them. All proposals from the provinces will
be considered. As a starting point, the Government
proposes to discuss the following areas with the
provinces:
drug prosecutions
wildlife conservation and protection
transportation of dangerous goods
soil and water conservation
ferry services
small craft harbours
some aspects of financial sector regulation
some aspects of bankruptcy law
some aspects of unfair trade practices
inspection programs
27. The Exercise of the Federal Spending Power
in Areas of Exclusive Provincial Jurisdiction. The
Government of Canada commits itself not to introduce
new Canada-wide shared-cost programs and conditional
transfers in areas of exclusive provincial
jurisdiction without the approval of at least seven
provinces representing 50 percent of the population.
This undertaking would be entrenched in the
Constitution. The constitutional amendment would
also provide for reasonable compensation to non-
participating provinces which establish their own
programs meeting the objectives of the new Canada-
wide program.
28. Working Together: a Council of the
Federation. The Government of Canada proposes the
entrenchment of a Council of the Federation,
composed of federal, provincial and territorial
governments, that would meet to decide on issues of
intergovernmental coordination and collaboration.
The Council would have the mandate to vote on
proposed federal legislation to enhance the
functioning of the economic union under the proposed
new head of power; to vote on guidelines for fiscal
harmonization and coordination as well as to decide
on processes to improve future collaboration in this
area; and to make decisions on the use of the
federal spending power on new Canada-wide shared-
cost programs and conditional transfers in areas of
exclusive provincial jurisdiction. All decisions of
the Council of the Federation would require the
approval of the federal government and of at least
seven provinces representing 50 percent of the
population.
Conclusion
How Do We Get There?
If we had not felt that, after coming to this
conclusion, we were bound to set aside our
private opinions on matters of detail, if we
had not felt ourselves bound to look at what
was practicable, not obstinately rejecting
the opinions of others nor adhering to our
own; if we had not met, I say, in a spirit of
conciliation, and with an anxious, overruling
desire to form one people under one
government, we never would have succeeded.
Sir John A. Macdonald, 1865
Canadians everywhere care deeply about Canada,
and about the advantages and opportunities that
Canadian citizenship offers.
We have the chance today to make our country
even better to make our institutions more
responsive, our economy more prosperous, our
political arrangements more effective, our
governments more accountable. We have the chance to
recognize and express the character of our many
different identities. We have an opportunity to
rediscover our purpose together and, in doing so, to
move forward as a people.
The proposals advanced by the Government of
Canada in this paper have been developed to respond
to concerns expressed by Canadians from all walks of
life. Canada's aboriginal peoples, who were ignored
in the original bargain of Confederation and have
been ignored too often since, make up one of those
constituencies. Another is those who feel strongly
that the original bargain has not been fully
respected: many Quebecers who believe that Canada
has not lived up to its original commitment to
respect their distinctiveness; and Atlantic
Canadians whose average incomes continue to trail
substantially behind those of other Canadians after
125 years. Western Canadians have tended in recent
years to question the responsiveness of national
institutions that reflect only marginally the
regional nature of our country. There is also a
larger constituency the many Canadians who feel
that the bargain has not been sufficiently updated
to meet our changing needs. They believe that the
terms of our union should be transformed just as
Canada has been transformed to keep pace with
changing social patterns, new economic realities,
and changing values.
These proposals are being put forward in a
spirit of openness, and in the hope of renewal for
this country. They are intended to be comprehensive,
but not inflexible. They are offered with the
intention of prompting a broad, informed and
specific public debate. The Government is now
inviting the people of Canada to participate in the
process of building a new consensus for Canada, a
consensus that can be made real through amendments
to our Constitution, through agreements between
governments and through changes to the way in which
our institutions serve us.
These proposals will be referred to a Special
Joint Committee. This committee has a mandate to
travel widely within Canada, to speak with Canadians
and with their provincial and territorial
representatives from coast to coast to coast. Every
Canadian will have the right and the
responsibility to participate. The Committee will
make its report in early 1992. Upon receiving the
report, the Government will propose a plan for a
renewed Canada, for Parliament's consideration.
The Government believes that, at the end of this
national debate, we will understand ourselves better
and appreciate our country more fully. Compromise
and tolerance will be required of all of us, but we
will build on a foundation of values and
institutions that we care about and that will not
change. And we will have worked together toward a
vision of the country that we can all share,
reflected in our Constitution.
Appendix I
List of Proposals
Part I: Shared Citizenship and Diversity
1. Reaffirming the rights and freedoms of
citizens. The Government of Canada reaffirms the
basic rights set out in the Charter as a fundamental
feature of the Canadian Constitution. The Government
of Canada proposes that the Canadian Charter of
Rights and Freedoms be amended to guarantee property
rights. The Government of Canada further proposes
that the votes necessary for Parliament or a
provincial legislature to invoke the override
(section 33) be changed from a simple majority to 60
percent of the members of Parliament or the
provincial legislature.
2. Recognition of Quebec's distinctiveness and
Canada's linguistic duality. The Government of
Canada proposes that a section be included in the
Charter stating that the Charter of Rights and
Freedoms shall be interpreted in a manner consistent
with the recognition of Quebec as a distinct society
within Canada. The section would read:
25.1 ( 1 )
This Charter shall be interpreted in a manner
consistent with
(a) the preservation and promotion of Quebec
as a distinct society within Canada; and
(b) the preservation of the existence of
French-speaking Canadians, primarily located
in Quebec but also present throughout Canada,
and English-speaking Canadians, primarily
located outside Quebec but also present in
Quebec.
( 2 )
For the purposes of subsection (1), "distinct
society", in relation to Quebec, includes
(a) a French-speaking majority;
(b) a unique culture; and
(c) a civil law tradition.
(See the Annex at the end of Part I for excerpts
from the Charter: present sections 1, 25, 27, 28 and
31 and proposed section 25.1.)
3. Aboriginal participation in current
constitutional deliberations. The Government of
Canada is committed to ensuring that aboriginal
peoples participate in the current constitutional
deliberations.
4. Aboriginal self-government. The Government
of Canada proposes an amendment to the Constitution
to entrench a general justiciable right to
aboriginal self-government within the Canadian
federation and subject to the Canadian Charter of
Rights and Freedoms, with the nature of the right to
self-government described so as to facilitate
interpretation of that right by the courts. In order
to allow an opportunity for the Government of
Canada, the governments of the provinces and the
territories, and aboriginal peoples to come to a
common understanding of the content of this right,
its enforceability would be delayed for a period of
up to 10 years. The Special Joint Committee should
examine the broad parameters of the right to be
entrenched in the Constitution and the jurisdictions
that aboriginal governments would exercise.
5. Aboriginal constitutional process. The
Government of Canada proposes the entrenchment of a
constitutional process to address aboriginal matters
that are not dealt with in the current
constitutional deliberations and to monitor progress
made in the negotiations of self-government
agreements.
6. Representation of aboriginal peoples in the
Senate. The Government of Canada proposes that
aboriginal representation should be guaranteed in a
reformed Senate.
7. A Canada clause in the Constitution. The
Government of Canada proposes that a "Canada clause"
that acknowledges who we are as a people, and who we
aspire to be, be entrenched in section 2 of the
Constitution Act, 1867. The Government of Canada
believes that it would be appropriate for the
following characteristics and values to be reflected
in such a statement:
a federation whose identity encompasses the
characteristics of each province, territory
and community;
the equality of women and men;
a commitment to fairness, openness and full
participation in Canada's citizenship by all
people without regard to race, colour, creed,
physical or mental disability, or cultural
background;
recognition that the aboriginal peoples were
historically self-governing, and recognition
of their rights within Canada;
recognition of the responsibility of
governments to preserve Canada's two
linguistic majorities and minorities;
the special responsibility borne by Quebec to
preserve and promote its distinct society;
the contribution to the building of a strong
Canada of peoples from many cultures and lands;
the importance of tolerance for individuals,
groups and communities;
a commitment to the objective of sustainable
development in recognition of the importance
of the land, the air and the water and our
responsibility to preserve and protect the
environment for future generations;
respect for the rights of its citizens and
constituent communities as set forth in the
Canadian Charter of Rights and Freedoms;
the free flow of people, goods, services and
capital throughout the Canadian economic
union and the principle of equality of
opportunity throughout Canada;
a commitment to the well-being of all
Canadians;
a commitment to a democratic parliamentary
system of government;
the balance that is especially Canadian
between personal and collective freedom on
the one hand and, on the other hand, the
personal and collective responsibility that
we all share with each other.
Part II: Responsive Institutions for a Modern
Canada
8. House of Commons. The Government of Canada
commits itself to a process of further parliamentary
reform to give individual MPs more free votes and to
reduce the application of votes of confidence.
9. Principles of Senate reform: an elected,
effective and more equitable Senate. The Government
of Canada proposes that:
the Senate be directly elected;
Senate elections coincide with elections to
the House of Commons;
the Senate's composition provide for much
more equitable provincial and territorial
representation than at present;
the House of Commons remain the primary
legislative body;
as a general rule, in order for measures to
become law, approval of both the Senate and
the House of Commons should be required as at
present;
for matters of language and culture, the
Senate would also have a double majority
special voting rule;
for matters of national importance, such as
national defence and international issues,
the Senate would have a six-month suspensive
veto. Following expiry of the suspensive
veto, the House of Commons would be required
to repass the legislation for it to become
law;
since the Senate is not a confidence chamber,
the Senate would have no legislative role in
relation to appropriation bills and measures
to raise funds including borrowing
authorities;
guaranteed representation be provided for
aboriginal Canadians in the Senate;
the Senate continue to have a mandate to
conduct special inquiries into issues of
public policy.
10. Details of Senate reform. The Government of
Canada proposes that the Special Joint Committee of
Parliament consider the following issues:
the form of direct election to the Senate;
the appropriate number and distribution of
Senate seats;
in consultation with the aboriginal peoples,
the appropriate representation of Canada's
First Peoples.
11. Senate Ratification of Appointments to
Regulatory Boards and Agencies. The Government of
Canada proposes that the Senate be given a mandate
to ratify the appointment of the Governor of the
Bank of Canada and the appointments of the heads of
national cultural institutions, such as the Canadian
Broadcasting Corporation, the National Film Board,
the National Library, the National Archives, the
national museums, the Canadian Film Development
Corporation, the Canada Council and the National
Arts Centre, as well as the heads of regulatory
boards and agencies such as the National Energy
Board, the National Transportation Agency, the
Canadian Radio-television and Telecommunications
Commission, the Immigration and Refugee Board, and
the proposed Canadian Environmental Assessment
Agency.
12. Appointments to the Supreme Court of
Canada. The Government of Canada will introduce a
constitutional amendment to provide for a role for
the provinces and the territories in Supreme Court
appointments whereby appointments would be made by
the federal government from lists of nominees
submitted by provincial and territorial governments,
the individual appointed being acceptable to the
Queen's Privy Council of Canada.
In addition, the Government of Canada would be
prepared to proceed with the entrenchment in the
Constitution of the Supreme Court and its
composition if it were found desirable to proceed
with any unanimity items in the final package.
13. The Constitutional Amending Formula. The
Government of Canada would be prepared to proceed
with changes to the amending formula as specified in
the Meech Lake Accord if a consensus on this matter
were to develop; if the accession of existing
territories to provincehood were to proceed on the
basis of the current amending formula; and if it
were found desirable to proceed ultimately with any
items requiring unanimous consent in the final
package.
Part III: Preparing for a more Prosperous Future
14. Broadening s. 121, the common market
clause. The Government of Canada proposes that
section 121 of the Constitution Act, 1867 be amended
to read as follows:
121. (1)Canada is an economic union within
which persons, goods, services and
capital may move freely without barriers
or restrictions based on provincial or
territorial boundaries.
(2)Neither the Parliament or Government of
Canada nor the legislatures or governments of
the provinces shall by law or practice
contravene the principle expressed in
subsection (1).
(3)Subsection (2) does not render invalid
(a) a law of the Parliament of Canada
enacted to further the principles of
equalization or regional development;
(b) a law of a provincial legislature
enacted in relation to the reduction of
economic disparities between regions
wholly within a province that does not
create barriers or restrictions that are
more onerous in relation to persons,
goods, services or capital from outside
the province than it does in relation to
persons, goods, services or capital from
a region within the province; or
(c) a law of the Parliament of Canada or
of the legislature of a province that has
been declared by Parliament to be in the
national interest.
(4)A declaration referred to in paragraph (3)
(c) shall have no effect unless it is
approved by the governments of at least two-
thirds of the provinces that have, in the
aggregate, according to the then latest
general census, at least 50 percent of the
population of all the provinces.
(5)This section shall come into force on July
1, 1995.
15. Power to Manage the Economic Union. The
Government of Canada proposes that the following
section be added to the Constitution Act, 1867
immediately after section 91:
91A. (1)Without altering any other authority
of the Parliament of Canada to make laws,
the Parliament of Canada may exclusively
make laws in relation to any matter that
it declares to be for the efficient
functioning of the economic union.
(2)An Act of the Parliament of Canada made
under this section shall have no effect
unless it is approved by the governments of
at least two thirds of the provinces that
have, in the aggregate, according to the then
latest general census, at least 50 percent of
the population of all the provinces.
(3)The legislative assembly of any province
that is not among the provinces that have
approved an Act of the Parliament of Canada
under subsection (2) may expressly declare by
resolution supported by 60 percent of its
members that the Act of Parliament does not
apply in the province.
(4)A declaration made under subsection (3)
shall cease to have effect three years after
it is made or on such earlier date as may be
specified in the declaration.
The Government of Canada also proposes that the
Special Joint Committee consider whether the opting-
out provision should be renewable.
16. Harmonization of economic policies. The
Government of Canada proposes to develop, with the
provinces, an annual timetable to allow for more
open and visible budget-making processes.
The Government of Canada proposes to develop,
with the provinces, guidelines to improve the
coordination of fiscal policies and the
harmonization of fiscal policies with Canada's
monetary policy. Once approved, these guidelines
would be set in federal legislation under the new
economic union power. Accordingly, these guidelines
would require the approval of at least seven of the
provinces representing 50 percent of the population,
and up to three provinces could opt out.
The Government also proposes to discuss with the
provinces the establishment of an independent agency
to monitor and evaluate the macroeconomic policies
of the federal and provincial governments.
17. Reforms to the Bank of Canada. The
Government of Canada proposes to amend the Bank of
Canada Act to make it clear that the mandate of the
Bank is to achieve and preserve price stability. To
ensure regional representation on the Board of
Directors of the Bank of Canada, the Government will
solicit the views of provincial and territorial
governments and consult with them before making
appointments to the Board. In addition, the
Government proposes to create regional consultative
panels to advise the Directors of the Bank on
regional economic conditions. The Government will
also solicit the views of provincial and territorial
governments with respect to the membership of the
regional panels. Moreover, the appointment of the
Governor of the Bank of Canada would be subject to
Senate ratification.
18. Training. The Government of Canada proposes
that section 92 of the Constitution Act, 1867 be
amended to recognize explicitly that labour market
training is an area of exclusive provincial
jurisdiction.
19. Immigration. While recognizing the federal
role in setting Canadian policy and national
objectives with respect to immigration, the
Government of Canada is prepared to negotiate with
any province agreements appropriate to the
circumstances of that province and to
constitutionalize those agreements.
20. Culture. The Government of Canada will
negotiate with the provinces, upon their request,
agreements appropriate to the particular
circumstances of each province to define clearly the
role of each level of government. Where appropriate,
such agreements would be consti-tutionalized.
21. Broadcasting. The Government of Canada
proposes to:
1. consult with the provinces on the
issuance of new licences;
2. provide provincial governments and their
agents with the opportunity to evolve
into full public broadcasting
undertakings with varied programming,
subject to CRTC regulation;
3. further regionalize the operations of the
CRTC and expand the roles of its regional
offices;
4. allow for provincial participation in the
nomination of regional commissioners of
the CRTC.
22. The Residual Power. The Government of
Canada proposes to reserve to itself the Peace,
Order and Good Government clause of the Constitution
Act, 1867 to maintain its authority to deal with
national matters or emergencies. However, the
Government of Canada is prepared to transfer to the
provinces authority for non-national matters not
specifically assigned to the federal government
under the Constitution or by virtue of court
decisions.
23. The Federal Declaratory Power. The
Government of Canada is prepared to support a
constitutional amendment to remove the declaratory
power set out in section 92(10)(c).
24. Recognizing Areas of Provincial
Jurisdiction. Within this framework, the Government
of Canada is committed to ensuring the preservation
of Canada's existing research and development
capacity obligations for international and native
affairs. The Government of Canada is prepared to
recognize the exclusive jurisdiction of the
provinces and discuss how best to exercise its own
responsibilities in a manner appropriate to the
sector in the following areas:
25. Legislative Delegation. The Government of
Canada endorses the recommendation of the Beaudoin-
Edwards Joint Parliamentary Committee that there be
a constitutional amendment providing for delegation
of legislative powers between Parliament and the
legislatures, and that there be provisions inserted
in the Constitution to enable the delegation of
legislative authority between the two levels of
government with the mutual consent of the
legislative bodies involved.
26. Candidates for Streamlining. In order to
provide Canadians with the best service at the
lowest possible cost, the federal government is
prepared to discuss with the provinces the
rationalization of government programs and services
by reviewing which level of government can best
deliver them. All proposals from the provinces will
be considered. As a starting point, the Government
proposes to discuss the following areas with the
provinces:
drug prosecutions
wildlife conservation and protection
transportation of dangerous goods
soil and water conservation
ferry services
small craft harbours
some aspects of financial sector regulation
some aspects of bankruptcy law
some aspects of unfair trade practices
inspection programs
27. The Exercise of the Federal Spending Power
in Areas of Exclusive Provincial Jurisdiction. The
Government of Canada commits itself not to introduce
new Canada-wide shared-cost programs and conditional
transfers in areas of exclusive provincial
jurisdiction without the approval of at least seven
provinces representing 50 percent of the population.
This undertaking would be entrenched in the
Constitution. The constitutional amendment would
also provide for reasonable compensation to non-
participating provinces which establish their own
programs meeting the objectives of the new Canada-
wide program.
28. Working Together: a Council of the
Federation. The Government of Canada proposes the
entrenchment of a Council of the Federation,
composed of federal, provincial and territorial
governments, that would meet to decide on issues of
intergovernmental coordination and collaboration.
The Council would have the mandate to vote on
proposed federal legislation to enhance the
functioning of the economic union under the proposed
new head of power; to vote on guidelines for fiscal
harmonization and coordination as well as to decide
on processes to improve future collaboration in this
area; and to make decisions on the use of the
federal spending power on new Canada-wide shared-
cost programs and conditional transfers in areas of
exclusive provincial jurisdiction. All decisions of
the Council of the Federation would require the
approval of the federal government and of at least
seven provinces representing 50 percent of the
population.
